In person For the v Mr L Ashwood, solicitor UNANIMOUS — 2021

The claimant was employed as a part-time care assistant from 8 February 2017 and was absent from work from 4 December 2017 after being diagnosed with breast cancer. An occupational health report dated 8 January 2019 said she was unfit for work, that no adjustments were identified to support a return at that time, and that a return date could not be determined. After inviting her to a long-term sickness hearing on 7 May 2019, the respondent dismissed her for ill health in her absence and later upheld the dismissal on appeal on 30 May 2019.

The tribunal held that the reason for dismissal was capability. It found that the claimant had been given ample and sufficiently clear notice of the meeting, had a proper opportunity to take part in consultation, and then had a full appeal hearing. It also found that the occupational health evidence was sufficient to justify the conclusions that she was not fit for work at the time of dismissal and that no foreseeable return date could be identified. The unfair dismissal claim was therefore dismissed.

The direct disability discrimination claim failed because the tribunal found no facts from which it could infer that the dismissal was because of the claimant's cancer, and in any event found that the dismissal was not, on the balance of probabilities, because of disability. The section 15 EqA 2010 claim also failed. The tribunal accepted the respondent's legitimate aim of foreseeable, regular attendance from care staff and held that dismissal was a proportionate means of achieving that aim, taking into account the length of absence, the occupational health evidence, the cost of continued holiday accrual, and the continuity of care considerations it accepted.

The claimant succeeded only in her money claim for holiday pay and unpaid notice pay. The tribunal held that she should have been paid £1,602.15 gross in total for accrued holiday and notice pay, but had only received £870.91 gross, leaving an underpayment of £731.24 gross. That sum was awarded to her; no separate award was made for the dismissed claims.