Claimant v Her Majesty’s Revenue and Customs HMRC: S/4109283/2018 — 2019

Mrs Mary Simpson (formerly Martin) was employed as a contact centre adviser at HMRC's Bathgate Contact Centre from 12 January 2009. She went off sick on 21 August 2017 with sciatica and later a slipped disc, and the respondent held a series of keeping-in-touch and absence management meetings before obtaining occupational health advice. On 15 December 2017 Annette Russell decided to dismiss her on 10 weeks' notice, with an effective date of termination of 24 February 2018. The tribunal noted that she remained medically certified unfit for work until 24 May 2018, although she began searching for other work on 19 February 2018.

On the unfair dismissal claim, the tribunal held that capability was the potentially fair reason and that the dismissal satisfied section 98(4) of the Employment Rights Act 1996. It found that by 19 October 2017 the claimant was on notice that termination could follow if no return to work within a reasonable timescale could be identified, that the referral to a decision maker before the later occupational health report was not procedurally unfair, and that the claimant had an opportunity to comment on the report but did not ask for a further meeting. The tribunal also held that the appeal manager reasonably refused to accept the claimant's late appeal under the 10-working-day appeal rule. The claimant's late appeal was prompted by her discovery that the compensation under the Civil Service Compensation Scheme would be nearer £1,800 than the £12,000 she had assumed, and the tribunal did not accept that HMRC had misrepresented the figure.

On the section 15 Equality Act 2010 claim, the tribunal accepted the respondent's concession that the claimant had the protected characteristic of disability during the material period. It accepted that the application of the absence management policy and the dismissal amounted to unfavourable treatment because of something arising in consequence of disability, but held that the respondent's aim of providing the public with an efficient and effective telephone call service was legitimate and that dismissal was a proportionate means of achieving that aim. The tribunal therefore dismissed the discrimination claim as well, and no remedy was awarded.