Member P O’Hagan Tribunal Member D Frew A v Represented by: Mr B McLaughlin –10 Solicitor Barchester Healthcare Limited — 2023

The claimant worked as a carer at Balclutha Court from 30 March 2020. They went off sick on 4 November 2021 with depression, were admitted to hospital after a suicide attempt on 7 November 2021, remained absent from work, and later made another suicide attempt on 22 May 2022. The claimant’s GP report of 2 June 2022 said they had a depressive disorder, were under ongoing supervision, could not carry out normal day-to-day employment activities without medication, and gave no date for a likely return to work, although a phased return in a low-stress setting was mentioned as the only relevant adjustment.

After meetings on 8 July 2022 and 17 August 2022, the respondent dismissed the claimant by letter dated 19 August 2022 on the grounds of capability, namely continued absence through ill health. The tribunal found that the reason for dismissal was capability and not conduct. It accepted that Ms Dickson was concerned about the claimant’s disclosures of intrusive thoughts and that the respondent later referred the matter to the Scottish Social Services Council, but it found that those disclosures were not the reason for dismissal; the decision was based on the length of sickness absence and the absence of any clear prospect of return in the near future.

On unfair dismissal, the tribunal applied s.98(4) ERA 1996 and the range of reasonable responses approach, with reference to the authorities on long-term ill health and consultation. It found that the respondent had obtained medical evidence, consulted the claimant, and was entitled to take account of the staffing pressures at the care home, the need to use agency staff, the cost of that cover, and the effect on continuity and quality of care. The dismissal was therefore found to be fair and the unfair dismissal claim was dismissed.

On direct disability discrimination, the tribunal found that the claimant was not treated less favourably than a non-disabled comparator in materially similar circumstances. It found that a non-disabled employee with the same length of sickness absence and no foreseeable return would also have been dismissed, and it noted evidence that other non-disabled employees had been dismissed after prolonged absences. On discrimination arising from disability, the tribunal found that the claimant’s long-term sickness absence and intrusive thoughts arose in consequence of their disability, and that dismissal was unfavourable treatment because of the long-term absence. However, it found the dismissal was a proportionate means of achieving the legitimate aim of maintaining safe and effective care for residents by ensuring sufficient permanent staffing rather than extended reliance on agency cover. No monetary award was made.