member J Burnett Tribunal member P McColl Ms C Sweeney v Lloyds Bank plc — 2021

The claimant, who had degenerative disc disorder and anxiety and depression, was dismissed on capability grounds after a history of sickness absence. The respondent knew she was disabled. It was accepted that dismissal was unfavourable treatment arising in consequence of disability, so the section 15 issue was whether dismissal was justified. The Tribunal found that managing employees who could not sustain acceptable attendance was a legitimate aim and that dismissal was proportionate to that aim, although it did not accept that the separate customer-service aim had been evidenced sufficiently to justify dismissal on its own.

For reasonable adjustments, the Tribunal found that requiring the claimant to attend the office and requiring completion of the attaining competence process before home working were PCPs that placed her at a substantial disadvantage, and that the respondent knew of that disadvantage. The claim was out of time, but the Tribunal found it just and equitable to consider it. On the merits, it concluded that home working or changing the attaining competence policy would not reasonably have brought the claimant's attendance to an acceptable sustainable level, given the medical evidence and the claimant's continuing flare-ups.

On unfair dismissal, the Tribunal found the reason for dismissal was capability related to health and attendance. It held that the respondent had consulted the claimant, obtained occupational health evidence, delayed the final decision, made a number of adjustments, and considered home working. Although another reasonable employer might have delayed further or trialled home working, the Tribunal found the respondent's procedure and decision to dismiss were within the range of reasonable responses.