Ms Mandie Miller v United Lincolnshire Hospitals NHS Trust — 2022

Ms Miller worked for United Lincolnshire Hospitals NHS Trust from 8 April 2009 until her dismissal with effect from 27 July 2020. The tribunal accepted that from 3 July 2019 she was disabled by long-term pain in her left forearm and wrist and by depression and anxiety. It also recorded that Occupational Health had said in June 2018 that she was permanently unfit for her HCSW role and recommended permanent redeployment. The case then progressed through support meetings, capability hearings in July 2019, March 2020 and May 2020, an appeal, and a later hearing where the tribunal ordered costs of £1,750 + VAT because the respondent had failed to comply with orders; the merits remedy was left to a separate hearing.

The unfair dismissal claim succeeded. The tribunal accepted that the reason for dismissal was capability, but held that the final decision was outside the range of reasonable responses because the panel did not obtain up-to-date Occupational Health advice when the claimant was again absent with work-related stress, and because a reasonable employer would have waited longer before dismissing. The tribunal also found that the respondent knew the claimant wanted the Ward Clerk role, that the vacancy was later released shortly after dismissal, and that she should have been given a preferential interview rather than being required to compete for the post. The respondent's Polkey argument was rejected.

The section 15 discrimination arising from disability claim succeeded only in part. As to dismissal, the tribunal held that the causal link between the claimant's inability to carry out her HCSW role and her dismissal was too remote or broken, because she had been unable to do the role since 2017, had been told she was permanently unfit for it in 2018, and was ultimately dismissed because she had not secured redeployment and was absent with work-related stress. As to the Ward Clerk role, however, the tribunal found that the respondent's failure to offer a preferential interview, and the lack of interview adjustments when the claimant had indicated she needed help, amounted to unfavourable treatment arising from disability. The tribunal rejected the respondent's justification defence on that aspect.

The reasonable adjustments claim under sections 20 and 21 also succeeded in part. The tribunal accepted that applying the attendance management policy from 3 July 2019 was a PCP and that disabled employees were more likely to be disadvantaged by it because of increased absence and a greater risk of dismissal. It held that reasonable steps would have included allowing more time to secure alternative employment, adjusting the Ward Clerk interview process, slotting the claimant into the role through the softer preferential process, and offering a trial period and training or coaching. By contrast, the allegations about PCP3 and PCP4 were dismissed because the claimant did not clearly explain the disadvantage said to arise and the tribunal found that she had generally understood the meetings and outcomes, with letters or notes given where appropriate.