Mrs R Yunas v London Borough of Hackney — 2021

The claimant was dismissed following sickness absence and a formal Level 2 absence review. The tribunal found that the respondent dismissed her for capability, a potentially fair reason. It accepted that the decision-maker considered the occupational health reports, the claimant's long absence history, prior support and review meetings, service impact, and whether she was likely to sustain satisfactory attendance in future.

The tribunal rejected the claimant's unfair dismissal arguments, including that the respondent unfairly considered absence from 2008, ignored occupational health comments, failed to obtain updated occupational health evidence, failed to try a phased return with homeworking, acted despite her indication that she intended to return, or treated her differently from another employee. It found those matters had either been considered or were not sufficient to put the dismissal outside the range of reasonable responses.

The respondent accepted that the claimant was disabled by transverse myelitis and depression, but disputed knowledge of depression as a disability at the relevant time. The tribunal found the respondent knew of transverse myelitis but did not have actual or constructive knowledge that the depression met the statutory definition of disability, relying in part on occupational health reports describing the condition as reactive and not likely to be long term. On that basis the section 15 and reasonable adjustments claims failed, and the tribunal also found that excluding disability-related absences would not reduce the absence record enough to answer the respondent's legitimate concerns.