Ms L Douglas v National Probation Service — 2022

Ms L Douglas had worked for the National Probation Service since 1 April 1998 and was dismissed on 29 April 2020 after almost 11 months' sickness absence, the respondent describing the termination as medical inefficiency. The respondent accepted that she was disabled by reason of anxiety and depression, but the tribunal found that it did not know, and could not reasonably have been expected to know, that she had a disability until the Occupational Health report of 12 July 2019. Before that date the information held was limited to fit notes referring to work-related stress.

The unfair dismissal complaint was withdrawn at the hearing after the claimant accepted that she had been absent for 11 months, had no prospect of returning in the foreseeable future, and had effectively conceded she would not be able to return to work for the respondent. The section 15 Equality Act complaint about dismissal as unfavourable treatment because of something arising in consequence of disability was also withdrawn after the tribunal indicated that, in the context of long-term sickness absence, the dismissal would not succeed on the arguments advanced. No tribunal remedy was awarded; the £17,586.16 medical inefficiency payment and 13 weeks' pay in lieu of notice were part of the employer's termination process, not a tribunal award.

The remaining reasonable adjustments complaints failed. On the first, the tribunal found that the claimant had not been required to work under Sandra Clement and therefore had not shown a provision, criterion or practice placing her at a substantial disadvantage. On the second, it found that the grievance process complaint was really about the time taken, that the claimant had been told the appeal stage would take about 28 days, and that the process was completed within that period. The tribunal accepted the respondent's explanation that a thorough investigation could not reasonably have been completed any faster.

The harassment complaints also failed. The tribunal held that the enquiries about the claimant's whereabouts in relation to the parole hearing were reasonable, that the invitation to attendance review meetings was appropriate, and that the later appeal-meeting comments did not cross the section 26 threshold. It accepted that Ms O'Neill's 'vendetta' comment was inappropriate, but found that any upset caused was minor and did not amount to harassment. The victimisation complaint likewise failed because the tribunal found that the discussion on 13 March 2020 about the possible consequences of continued sickness absence was a reasonable explanation of the position, not a detriment because the claimant had done a protected act.