Mr Denman, Union Representative For the v Respondent — 2022

The claimant, a communications officer, was dismissed with effect from 19 November 2019 after an independent panel chaired by Supt Warby concluded that her attendance was unacceptable and that it was not satisfied she would sustain a satisfactory level of attendance. The tribunal found that the respondent relied on 17 sickness absences totalling 100 days over a 26-month period, and that capability was the potentially fair reason for dismissal under section 98(2)(a) of the Employment Rights Act 1996.

The tribunal accepted that the probation process had defects and delay, including shortcomings when Ms Muir was managing the claimant’s probation, but held that these matters were not sufficient, individually or cumulatively, to make the dismissal unfair. It found that the claimant had been given warnings from August 2018 that attendance remained a concern, that probation had been extended to give her more time, and that the respondent had provided occupational health input and adjustments including micro-breaks, recuperative hours and the opportunity to apply for flexible working. It also found that the dismissal hearing and appeal process did not involve material procedural unfairness.

On disability, the tribunal found that the claimant was not a disabled person by reason of fibromyalgia during the material time ending on 9 November 2019. It gave reduced weight to the July 2019 GP letter because of errors and the incomplete history provided, and found that the claimant’s evidence about falls was unreliable. The tribunal considered that the claimant’s symptoms were more likely attributable to other conditions and injuries, and said that the first reliable diagnosis of fibromyalgia was more likely in August 2020, after the material period had ended.

Because the claimant was not disabled during the material time, the direct discrimination and discrimination arising from disability claims failed. The tribunal also found that the direct discrimination allegation based on the 30 April 2019 email could not succeed because that email concerned another employee’s probation appeal rather than treatment of the claimant. On the section 15 claim, the tribunal found no reliable evidence linking the absences that led to dismissal to fibromyalgia, and therefore no unlawful unfavourable treatment because of something arising in consequence of disability.