Miss A Forder v Care UK Community Partnerships Limited — 2023

The claimant, a part-time gardener at the respondent's care home, had anxiety and depression. The respondent required regular Covid testing for all care home staff. The tribunal found that this PCP placed the claimant at a substantial disadvantage because attempting to test caused panic and anxiety reactions, led to sickness absence, and ultimately contributed to dismissal.

The tribunal found that reasonable adjustments were available. In particular, altered early working hours, avoiding access to the main building, and moving between garden areas if a resident came outside would have reduced or avoided the disadvantage. It found those adjustments were reasonable in context and that the respondent did not properly investigate or trial them.

For the section 15 claims, the tribunal accepted that the refusal or inability to test arose in consequence of disability. It found the final written warning and dismissal were unfavourable treatment and were not justified as proportionate means of achieving the legitimate aim of resident safety. The allegation about being sent home after attempting to test in November 2020 was dismissed because being asked to go home was not itself unfavourable in the circumstances.

The unfair dismissal claim was upheld. The tribunal found the claimant was capable of performing the gardening role, so the true reason was not capability but her continuing refusal to test, amounting to some other substantial reason. The dismissal was outside the range of reasonable responses because consultation was superficial, alternatives short of dismissal were not properly considered, the process was procedurally unsatisfactory, and the decision-makers approached testing as an absolute requirement without properly weighing reasonable adjustments.