Mr A Grant v EE Limited Heard: Remotely (by video link) — 2021

Mr A Grant worked as a customer advisor for EE Limited from 30 April 2018 to 17 April 2020, and the tribunal found that he met the section 6 EqA disability definition because of bile acid malabsorption and obstructed bowel. It found that he had not proved a further disability of CFS/Fibromyalgia on the balance of probabilities, because the medical material did not establish that diagnosis and the consultant immunologist's letter pointed to sleep apnoea as the matter to be excluded first. The respondent accepted the disability of BAM, had obtained occupational health input, and had already made adjustments to his symptoms. The unfair dismissal and direct disability discrimination claims were withdrawn, so the tribunal gave them no substantive merits determination.

On the section 15 EqA claim, the tribunal accepted that moving the claimant to Stage 3 of the sickness absence procedure and dismissing him were unfavourable treatment arising from his absence record. The respondent's legitimate aim was ensuring that employees attended work. Applying an objective proportionality assessment, the tribunal held that dismissal was a proportionate means of achieving that aim, relying on the sickness absence policy trigger structure, the extended trigger points actually used, repeated failed phased returns, the claimant's absences greatly exceeding policy levels, the absence of any reasonable prospect of improvement by 17 April 2020, and the lack of medical evidence that homeworking would reduce the absence rate.

On reasonable adjustments, the tribunal treated the relevant PCPs as moving the claimant to Stage 3 of the sickness absence procedure and operating that procedure to dismiss him. It found that the respondent had taken reasonable steps to avoid disadvantage, including early occupational health involvement, extended triggers, at least eight attempts at phased return, reduced hours, later starts, unlimited OH breaks, physiotherapy, EAP support, a DSE assessment, flexibility for medical appointments, and regular wellbeing meetings. It rejected waiting for diagnosis or treatment, homeworking, part-time working, a department change, and an extended return-to-work plan as reasonable adjustments on the evidence. The tribunal criticised delays and robustness issues in the DSE process, but held that this did not alter the overall proportionality or reasonable-adjustment analysis, and both remaining claims failed without any remedy hearing.