Alexandra Ivey v Norfolk County Council — 2024

Alexandra Ivey was a development worker for Norfolk County Council and was disabled by endometriosis and depression, which the Respondent accepted. After two substantial periods of sickness absence, Occupational Health reports, a phased return, and stage one and stage two sickness absence meetings, the Council dismissed her on 2 September 2021 for capability due to ill health. The tribunal found that Ms Brown did not give the claimant an assurance that dismissal would not happen, and that the invitation letters and the policy made dismissal a possible outcome.

On direct discrimination, the tribunal found that the dismissal and the failed appeal were not because of sex or disability. Applying the reason why test and the but-for approach, it held that the real reason was the claimant's sickness absence, the likelihood of further absence, and the absence of any clear return date. The tribunal found that a hypothetical male or non-disabled employee with the same absence history would have been treated the same, so the direct discrimination claims failed.

The indirect sex discrimination claim also failed. The tribunal found that the alleged requirement to make missed time up in the same working week was not a rule for sickness absence, because the Respondent required sickness absence to be recorded as sickness absence rather than made up later. It accepted that Social Services had a flexi-hours practice, but held that the claimant did not prove a particular disadvantage to women. In any event, the tribunal held that the practice of requiring contracted hours to be worked within the week was proportionate to the legitimate aim of maintaining service delivery and management cover.

For reasonable adjustments, the tribunal held that the sickness absence process and the stage-one target placed the claimant at a substantial disadvantage because the target was unrealistic for her condition and absence history. However, it found that the adjustment effectively sought by the claimant was to tolerate or ignore that level of absence, and that was not a reasonable step. The other alleged PCPs were not made out. On the s.15 disability claim, the tribunal accepted that dismissal and appeal rejection were unfavourable treatment because of something arising in consequence of disability, namely absences and likely future absences, but held that the treatment was justified as a proportionate means of achieving the legitimate aim of decent attendance. The unfair dismissal claim likewise failed because the council had a genuine and reasonable capability-based reason, consulted the claimant, obtained medical evidence, and acted within the range of reasonable responses. No compensation was awarded.