Member I Ashraf Tribunal Member J McCaig Miss J Craig v Represented by Mr M Bertram - CAB Advisor Community Integrated Care — 2022

The claimant, a team leader at Thorneycroft Care Home, was dismissed on 26 July 2021 after a prolonged period of sickness absence linked to a brachial plexus injury and related pain. The tribunal accepted that the reason for dismissal was capability/ill health, not any ulterior motive, and found that the respondent had generally followed a fair sickness absence process up to the point of dismissal. It held, however, that no appeal took place, contrary to the respondent's own policy and the ACAS approach, so the dismissal was procedurally unfair under s.98(4) ERA 1996 and the band of reasonable responses test.

On remedy, the tribunal concluded that an appeal would inevitably have upheld the dismissal because the medical evidence still showed no clear return date and the claimant remained unfit for work. The compensatory award was therefore reduced to nil on a Polkey basis. The claimant was awarded only the basic award of £9,459.12, which was the sole monetary award made.

In the disability section, the respondent conceded that the claimant's brachial plexus injury and nerve damage amounted to a disability, but the tribunal rejected the case that anxiety was itself a separate disability. It found that the anxiety and stress recorded in the medical notes were reactions to the claimant's circumstances, rather than a mental impairment with the required long-term adverse effect.

The harassment claim failed because, although the claimant found some contact during her absence unwanted and distressing, the tribunal held that the respondent's communications were not intended to create a hostile environment and were not objectively unreasonable. It accepted that Mr Benson largely acted in line with the sickness absence policy, paused the process when appropriate, and communicated in a way the tribunal regarded as supportive rather than hostile.

The reasonable adjustments claim also failed. The tribunal accepted that the sickness absence policy and the requirement that a team leader undertake some physical duties were PCPs that placed the claimant at a substantial disadvantage, but it held that removing all physical duties and creating a purely desk-based role would not be a reasonable adjustment in a care home setting. It also found that further delaying or suspending the sickness absence process indefinitely was not reasonable.

The claim under s.15 EqA 2010 failed for similar reasons. The tribunal accepted that the claimant was treated unfavourably in relation to duties and the continuation of the absence process, but held that any such treatment was justified by legitimate aims: maintaining appropriate care for residents and ensuring the financial viability of the care home. It relied on the absence of any clear medical prognosis and the need for a team leader who could respond to physical and emergency situations.