Members: Mr SF Evans Mr P O’Donnell Mrs Eileen Allardice v Represented by: Ms K Osborne Solicitor Glasgow City Council — 2018

The claimant worked for Glasgow City Council as a social care worker from 7 August 2000. The tribunal found that she was disabled by reason of osteoarthritis throughout the relevant period. Her absence history was extensive, and after a left knee replacement in 2014 she returned to work on a supported and phased basis. The present proceedings concerned her later absence from 23 February 2016, when she became unfit for work because of problems with her right knee.

The employer held repeated absence management meetings, obtained occupational health advice, and proposed a range of supports and adjustments, including phased return, desk-based work, relocation, micro-breaks and other measures. The June 2016 occupational health advice said she was unfit for work of any kind at that point and that no adjustments would facilitate a return at present, although later supplementary advice said supports could be discussed. By October 2016 the claimant still had no date for her operation, expected only a minimum three-month recovery after surgery, and remained absent. The tribunal found that the reason for dismissal was lack of capability due to ill health, not conduct.

Applying s.98(4) ERA 1996 and the band of reasonable responses approach, the tribunal held that the dismissal and the appeal outcome were fair. It found that the respondent had kept the claimant in contact, discussed her condition and prognosis, considered medical advice and other options, and was entitled to regard the continuing absence as unsustainable. Although the invite letter to the Absence Review Meeting did not say dismissal was a possible outcome, the tribunal found that the claimant and her union representative were familiar with the process and that an adjournment would have been granted if requested. It rejected the suggestion that the decision had been predetermined.

On reasonable adjustments, the tribunal identified the Absence Policy as the relevant PCP and accepted that the claimant was at a substantial disadvantage because of her disability. It nevertheless held that the adjustment sought, a longer period to return to work, was not reasonable because the timescale remained uncertain and an indefinite extension would not have been a realistic way to remove the disadvantage. On discrimination arising from disability, the tribunal accepted that dismissal was unfavourable treatment because of something arising from disability, but held that it was proportionate to the legitimate aim of securing consistent attendance and effective social care services. As all claims were dismissed, the tribunal made no award.