Mr N Woodhead, Lay Representative For the v Respondent — 2023

The claimant worked for the respondent at Timken Grange Care Home from 14 October 2020 until her dismissal on 23 March 2021, and the tribunal found she was disabled by reason of severe stage 4 endometriosis. The tribunal found the respondent knew, or ought reasonably to have known, of that disability from the pre-employment medical questionnaire and the risk assessment completed shortly before employment began, which recorded time off for scans, pain around the menstrual cycle, and possible future surgery.

The tribunal found that the claimant's dismissal was motivated by her level of absence during probation, not by disability itself. It therefore dismissed the direct discrimination complaint under s.13 Equality Act 2010. It accepted that a non-disabled employee with the same level of absence during probation would have been dismissed, and it rejected the claimant's case that the dismissal decision was taken because she was disabled.

The tribunal upheld the s.15 Equality Act 2010 complaint. It found that the claimant's periods of absence arose from her endometriosis, including planned absence before surgery and absence after an overnight hospital stay, and that dismissal was unfavourable treatment because of those absences. Although the respondent relied on the legitimate aim of maintaining safe and sufficient staffing levels, the tribunal found no evidence that the absences made staffing unsafe or insufficient, and it held that dismissal was not a proportionate means of achieving that aim.

The reasonable adjustments complaint under ss.20 and 21 Equality Act 2010 was dismissed. The claimant said the sickness absence policy should have ignored disability-related absences when considering dismissal, but the tribunal found the policy was not applied to probationary employees in any event. It therefore concluded that any adjustment to the policy would not have avoided the disadvantage said to arise from its application.