Ms Kirsty Cush v The Warden and Council of Saint Andrew’s College, Bradfield of Bradfield College — 2024

The claimant was dismissed for capability due to ill health after a period of sickness absence. The tribunal found that the respondent knew, or ought reasonably to have known, that the claimant was disabled by reason of depression and anxiety from about October 2021, and that her absence arose from that disability.

The direct disability discrimination claim was dismissed because the tribunal found that the dismissal was due to the conclusion that the claimant could not work, not because of disability itself. The discrimination arising from disability claim succeeded because dismissal was unfavourable treatment arising from disability-related absence and the respondent had not shown that dismissal at that time was a proportionate means of achieving its legitimate aims.

The unfair dismissal claim also succeeded. The tribunal found that before dismissal a reasonable employer would have consulted properly with the claimant, considered the occupational health report and prognosis more fully, and considered whether to wait longer. The claims about unpaid wages, holiday pay and other payments were dismissed upon withdrawal.