Member W Canning Tribunal Member S Currie Mr M Jamieson v Represented by: Mr J Lawson Trainee Solicitor HM Revenue & Customs — 2019

Mr M Jamieson worked as a Tax Credit Adviser at HMRC's Dundee office and rejoined the department on 18 March 2015. The tribunal accepted that he was disabled for Equality Act purposes in relation to pancreatitis, diabetes and depression. It found that HMRC had changed its sickness absence policy from a system that previously tolerated and discounted disability-related absence to HR27000, which used an eight-day trigger, allowed disability adjustment leave for appointments and treatment, and permitted managers to set a disability trigger point where justified.

The claimant's disability trigger point was set at 12 days and four occasions, representing a 50% uplift. The tribunal considered the way absences were recorded as disability-related or non-disability-related, including disputes about dental treatment, infection, and slower recovery from common illnesses. It found that the recording system was relatively mechanistic, but that managers were entitled to rely on the raw data together with return-to-work notes, keeping-in-touch records and occupational health advice. Even allowing for some reclassification, the tribunal held that the claimant would still have breached the trigger point.

The claimant received a first written improvement warning in November 2016, completed the first improvement period satisfactorily, then later breached the sustained improvement period. Following further absence in 2018, Mr Evans referred the matter for dismissal, Mr Dolan decided on 14 September 2018 to terminate employment because the claimant had failed to maintain an acceptable level of attendance, and Mr Ness rejected the appeal on 29 October 2018. The tribunal held that the reason for dismissal was better characterised as some other substantial reason, namely the operation of the attendance policy in response to unsatisfactory attendance, rather than capability.

Applying section 98 ERA 1996 and the range of reasonable responses test, the tribunal found the dismissal was fair. It accepted that the respondent had a legitimate need to provide an efficient public service, had considered occupational health reports, sought internal advice from RAST, held review meetings, and gave the claimant appeal rights. The tribunal concluded that the process was broadly fair and that dismissal was within the band of reasonable responses open to a reasonable employer.

On the section 15 Equality Act claim, the tribunal accepted that the claimant was treated unfavourably because of absence arising in consequence of disability, but held that HMRC had shown the dismissal was a proportionate means of achieving the legitimate aim of maintaining attendance and service delivery. On the reasonable adjustments claim under sections 20 and 21, it held that the adjustments already made, including the 50% disability trigger point uplift and additional breaks, were reasonable and that requiring HMRC to tolerate a much higher or open-ended level of absence would not have been reasonable in the circumstances. All claims were dismissed and no monetary award was made.