Member I Ashraf Tribunal Member D Calderwood Mr D Hunter v Ltd (In Liquidation) — 2020

The claimant was employed as Office Manager at the respondent's Glasgow store and was absent from November 2017 following serious bowel cancer surgery and related health issues. The respondent accepted that he was disabled, that dismissal was unfavourable treatment, that the dismissal was because of sickness absence, and that part of the absence was because of disability. The claimant was initially dismissed on capability grounds in August 2018, reinstated on appeal after indicating a planned return in November 2018, and then dismissed again after a further fit note and continued uncertainty about his return date.

On direct discrimination, the Tribunal found the reason for dismissal was the length of absence and uncertainty about return to work, and that a hypothetical non-disabled Office Manager absent for the same period with the same uncertainty would have been treated the same. On discrimination arising from disability, the Tribunal accepted that the dismissal was unfavourable treatment because of something arising in consequence of disability, but held that dismissal was proportionate to the legitimate aim of maintaining the operational performance of the Glasgow store.

The Tribunal was not satisfied that an indirect discrimination claim had properly been brought, but considered the PCPs advanced in submissions. It found that not using occupational health did not place the claimant at a relevant disadvantage on the facts, and that only using cover from other stores for short absences was justified. On reasonable adjustments, the Tribunal found that although some steps such as writing to the GP might have been reasonable or helpful, the evidence did not show that any proposed adjustment, including deferring the decision, obtaining occupational health advice, allowing a second appeal, or using staff from another store, would have avoided dismissal. All claims were dismissed.