Claimant v Boum v HMRC — 2019

Ms Veronique Boum was employed by HMRC from 8 June 2015, initially on a fixed-term contract that became permanent on 19 November 2015. Her work was mainly call-centre based. The tribunal found that she had genuine health-related absences over time, including migraine, back pain, hypertension, anaemia, stress and related conditions, and that she had been referred to occupational health on several occasions. It also found that her role in the Glasgow Contact Centre was predominantly telephony work, that her performance in that role raised concerns, and that an informal performance improvement plan was agreed in March 2017.

The tribunal held that the reason for dismissal was capability or some other substantial reason arising from the attendance management process, and that the dismissal was fair under s.98(4) ERA 1996. It accepted that HMRC had taken occupational health advice, used a warning process, reviewed attendance, and considered alternatives. The tribunal found that there was no realistic alternative to dismissal because the claimant’s absences and inability to undertake the core telephony duties continued, the work was materially telephone-based, and the appeal against dismissal was conducted fairly and reasonably.

On discrimination, the tribunal accepted that the claimant was a disabled person from 14 July 2017, but not earlier. It found a section 15 claim established in principle because the attendance management policy led to unfavourable treatment arising from disability, but held that HMRC had a legitimate aim of effective management of the work and that dismissal was a proportionate means of achieving that aim. The section 19 claim also failed: the tribunal accepted the attendance management policy was a PCP that disadvantaged disabled workers, but held that objective justification was proved, and it did not accept the alleged additional PCPs relating to daily telephone calls or a six-absence trigger.

The tribunal rejected the reasonable adjustments claim under sections 20 and 21. It held that HMRC did not reasonably know of disability before 14 July 2017, and that even if earlier knowledge had been established, increasing trigger points or requiring the claimant to do non-telephony work, part-time work, voluntary work, or less frequent keeping-in-touch contact were not reasonable adjustments on the evidence found. The separate holiday pay issue also failed: the tribunal held that HMRC was entitled under Regulation 15 of the Working Time Regulations 1998 to require accrued leave to be taken during notice, and no further sum was due.