Mr P Carney v Instructed by Messrs Unionline Amey Services Ltd — 2021

The claimant was employed as a staff nurse from December 2008 until July 2019. The tribunal recorded that she took maternity leave from February to November 2017, her son Y was born with a life-limiting condition, and he died in December 2017. She then remained off work on sickness absence from January 2018 until February 2019, after which she attempted an 8-week phased return before resuming sickness absence in March 2019. The tribunal accepted that Ms Fitzpatrick managed the absence process, arranged occupational health referrals, and maintained regular text contact with the claimant, which the claimant generally engaged with.

On the 2017 association-based allegations, the tribunal held that the complaints were out of time unless time was extended, but it concluded it was just and equitable to allow them to be heard because a fair hearing was still possible. Even so, it found that Ms Fitzpatrick did not tell the claimant she would not be returning to work because of Y's disability, and that the revalidation discussion concerned the respondent's then-current protocol and advice to contact the regulator, not harassment related to disability. Those allegations were therefore dismissed on the merits.

On the disability-related harassment and section 15 claims, the tribunal held that the claimant was disabled from spring 2018, but that the respondent only ought reasonably to have known this from 24 December 2018. It accepted that some of the alleged conduct occurred, including text exchanges, sick pay changes and occupational health referrals, but found that the texts and absence-management contact were not unwanted conduct, that no pressure to return to work was proved, that no premature dismissal was communicated, and that the home meeting on 4 July 2019 was not shown to have been conducted with a fixed intention to terminate before considering the medical position. The tribunal also found that the sick pay reductions were made under policy, that the nil-pay reference in the occupational health referral was background information, and that the supposed shift change was administrative and did not amount to an actual change in her work pattern.

The unfair dismissal claim failed. The tribunal accepted capability as the reason for dismissal and found the respondent had obtained up-to-date occupational health evidence, had waited a reasonable time, and had acted reasonably in concluding that there was no realistic prospect of a return to work in the foreseeable future. It found the claimant knew dismissal was being contemplated, that she did not ask for a formal meeting with Mr McCormack at the time, and that she did not appeal. The tribunal therefore held the dismissal to be fair under section 98(4) ERA 1996.

The maternity discrimination claim was also dismissed. The tribunal found that Ms Fitzpatrick did not take maternity leave into account when recommending dismissal, and that references to maternity leave in occupational health paperwork were included as background dates rather than as a factor in the decision. The final outcome was that each claim was dismissed and no tribunal award was made.