Member H Boyd Tribunal Member J Burnett Mr David Pickup v - Solicitor HMRC — 2020

The claimant, Mr David Pickup, worked for HMRC at East Kilbride from 15 June 2015 and was dismissed on 15 November 2016, with five weeks' notice to 20 December 2016, for continuing sickness absence. HMRC accepted by the time of the final hearing that he had an impairment arising from anxiety and depression amounting to disability, and the tribunal found that HMRC had actual knowledge of that disability at the latest from the Occupational Health report dated 16 September 2016. The tribunal also recorded that the claimant's internal appeal against dismissal was not upheld.

On the section 13 direct discrimination complaint, the tribunal held that the dismissal was not because of disability but because of the claimant's sickness absence record and his inability to give any return-to-work date within a reasonable timescale. It found that a hypothetical non-disabled employee with the same absence record and no short-term return indicated would also have been dismissed. On section 15 discrimination arising from disability, HMRC accepted that the dismissal was unfavourable treatment arising from something in consequence of disability, but the tribunal held that dismissal was a proportionate means of achieving the legitimate aim of having people attend work and carry out their duties.

On the section 19 indirect discrimination complaint, the tribunal rejected the contention that HMRC's keeping-in-touch requirements during sickness absence placed the claimant at a particular disadvantage. It found that the practice applied to all employees and served legitimate aims of reassuring the employee and identifying barriers to return to work. The tribunal also noted that the majority of keeping-in-touch calls were made by the claimant rather than management.

On the sections 20 and 21 reasonable-adjustments complaint, the tribunal held that HMRC had taken all reasonable steps that it could. It considered the claimant's reliance on an Occupational Health report suggesting that a period of reduced contact might help his anxiety, but found that without any identified return-to-work date it was not possible to devise any further workable adjustment or return-to-work plan. The tribunal therefore dismissed all complaints and made no award of compensation.