Mr R Winspear, Counsel For the v Respondent — 2024

The Claimant was disabled by reason of Crohn's disease. The Tribunal found that his disability caused regular, unpredictable short-term sickness absences and that the Respondent's Absence Policy placed him at a substantial disadvantage compared with non-disabled colleagues. It found that doubling the relevant absence triggers, together with the adjustments already made, was sufficient in respect of the way the absence process had been managed up to Stage Four.

The Tribunal found that the Respondent's duty to make reasonable adjustments extended to offering the Claimant redeployment into an Optical Consultant role at the Petty Cury store when his continued employment as a Student Dispensing Optician was at risk. The Respondent should have made that offer in writing, with material terms including remuneration, and allowed him a reasonable time to consider it. The Tribunal also found that dismissal for disability-related absences was unfavourable treatment arising from disability and was not proportionate because redeployment would have met the Respondent's legitimate aims in a more proportionate way.

The unfair dismissal complaint succeeded because the Respondent acted unreasonably in relying on capability as sufficient reason for dismissal without addressing the Claimant's questions about the Optical Consultant role, setting out redeployment in writing, allowing time for consideration, or exploring the stated business impact of absences with him. The appeal did not correct that unfairness. The Tribunal found the Claimant would have taken the Optical Consultant role if formally offered, but would have resigned by 31 December 2022 to pursue a new career.