Mr Omope, Solicitor For the v Respondent — 2023

The claimant was employed from 21 March 2016 as a Clinical Support Worker at Walker Close, a ward-based role requiring annual PMA training and physical involvement with patients. She suffered periods of absence in 2020, which triggered absence management, and the tribunal recorded that her latest absence was linked to rheumatoid arthritis. Occupational health advice identified that she also had sickle cell anaemia, was in a high-risk group in relation to Covid-19, and should work from home or in a Covid-secure environment; she was therefore temporarily redeployed away from ward duties.

The tribunal found that repeated reviews took place through 2020 and 2021, including wellbeing discussions, occupational health reports in October 2020, January 2021 and May 2021, and attendance management meetings in May, July and August 2021. The evidence before the tribunal was that she could not return to her substantive ward role in the foreseeable future, there were no suitable alternative roles then available, and the respondent had supported redeployment, applications and interview preparation. Her employment was terminated for ill health capability on 2 August 2021 and ended around 6 September 2021.

The ordinary unfair dismissal claim failed. The tribunal accepted capability as a potentially fair reason for dismissal and concluded that, in the circumstances known to the respondent at the time, dismissal was a fair and reasonable response. In reaching that conclusion the tribunal referred to s.98(4) ERA 1996 and the ACAS Code of Conduct, and noted the medical evidence, the meetings with management, the attempts to find alternative work, and the fact that the claimant could not perform the core duties of her role on a ward basis.

The disability discrimination claims also failed. On the s.15 claim, the tribunal accepted that the dismissal was unfavourable treatment linked to disability, but held that the respondent was pursuing legitimate aims connected with patient safety, health and safety, and the provision of a safe workplace, and that dismissal was proportionate because the claimant could not perform the substantive role and the temporary arrangements were not sustainable. On the reasonable adjustments claim under ss.20-22, the tribunal found that the proposed adjustments were not realistic or reasonable on the facts, including the suggestion that colleagues could carry out PMA in her place, and held that the steps actually taken, including redeployment support and priority for interview where essential criteria were met, were sufficient.

At the end of the hearing the respondent applied for costs and wasted costs. The tribunal declined to make a wasted costs order against Mr Omope because it could not disentangle the advice given by the different solicitors involved, but it did find that the claimant and/or her representative had acted unreasonably in bringing and conducting proceedings that had no prospect of success. It therefore ordered the claimant to pay the respondent's costs in the sum of £10,491.