Ms M Sharpe, Counsel For the v Respondent — 2023

The claimant, Ms C Dookhith, was employed as a registered nurse and was dismissed with effect from 18 November 2019 after a series of disciplinary processes concerning two incidents in March and June 2018 and her continued refusal to return to work from 6 August 2018. The tribunal accepted the evidence of the respondent's witnesses over the claimant's account on the material issues, and found that the temporary removal from clinical duties was based on patient safety concerns rather than any perception that she was disabled. It also found that the respondent's efforts to obtain occupational health input and GP information were directed to exploring whether there was a medical explanation for her conduct.

The disability discrimination claim was pleaded as direct discrimination by perception of autism under s.13 Equality Act 2010. The tribunal considered nine alleged acts, including the restricted duties decision, written warnings, reconvened disciplinary hearings, the final warning, dismissal, and the appeal outcome. Applying the burden of proof provisions in s.136 Equality Act 2010 and the perceived discrimination authorities it cited, including Chief Constable of Norfolk v Coffey, the tribunal found that the claimant had not established a prima facie case on any allegation. It held that the respondent's actions were taken because of conduct and patient safety concerns, and that the relevant decision-makers did not act because of a perceived disability.

The unfair dismissal claim failed. The tribunal held that the reason for dismissal was conduct within s.98(2)(b) ERA 1996, namely the claimant's refusal to return to work and comply with the disciplinary outcome conditions. Applying the Burchell test and the band of reasonable responses approach in s.98(4) ERA 1996 and Iceland Frozen Foods v Jones, it found the respondent had carried out a reasonable investigation, held a fair process across four disciplinary hearings, and was entitled to dismiss. The appeal was also upheld by Mr Mike Mears.

The tribunal dismissed the remaining money claims. It treated the notice pay issue as falling within the unlawful deduction of wages claim and held that the claimant had no entitlement to pay from 6 August 2018 onwards because her absence was unauthorised. It also rejected the holiday pay claim under the Working Time Regulations 1998, finding that holiday did not accrue during absence without leave and that any sums due on termination had already been properly paid. No monetary award was made.