Mr. AB Grant Mr. G Doherty A v Represented by: Ms L Sourbutts - Director, Cube HR Consultancy Ltd Her Majesty’s Revenue and Customs — 2019

The claimant had been employed by HMRC since 18 October 1976 and was absent from work from 8 January 2018 because of acute stress reaction linked to personal and family matters. HMRC accepted that she had a disability and that it had knowledge of that disability from 17 May 2018. The tribunal recorded a series of attendance management meetings, occupational health reports dated 9 April 2018 and 17 May 2018, and the claimant's request for a postponement of the decision meeting while she moved house. The decision meeting took place on 18 July 2018, and the claimant's employment was terminated with notice to 30 October 2018. Her appeal was rejected on 30 August 2018.

On the unfair dismissal claim, the tribunal held that the dismissal was for capability because the claimant's health was at the forefront of the respondent's mind. Applying section 98(4) ERA 1996 and the range of reasonable responses approach, it found that HMRC had consulted the claimant throughout her absence, obtained medical advice, considered whether she might return within a reasonable timescale, explored adjustments and alternative roles, and referred the case for decision only after a lengthy absence that exceeded its usual three-month referral point. The tribunal accepted that the respondent was entitled to conclude that there was no reasonable prospect of a return to work in the foreseeable future and that the business could no longer support the absence. It also found that the appeal was handled fairly and in accordance with the procedure.

The direct discrimination claim failed because the claimant did not identify evidence of less favourable treatment compared with a real or hypothetical non-disabled comparator. The tribunal noted that, on the respondent's evidence, a routine long-term absence case would normally be referred to a decision maker after three months, whereas the claimant's case was referred after almost five months, so the evidence did not support less favourable treatment because of disability. The indirect discrimination and discrimination arising from disability claims also failed: although the attendance management policy was accepted to be a PCP that disadvantaged disabled employees and the claimant, the tribunal found that HMRC had a legitimate aim of providing an efficient and effective service for taxpayers and that dismissal under the policy was a proportionate means of achieving that aim in light of the length and impact of the absence, the absence of a definite return date, and the lack of any reasonable adjustments that would enable a return.

The reasonable adjustments claim failed because the tribunal held that postponing the decision meeting by up to two months would not have removed the disadvantage, since the claimant was still unfit for work and had been issued with a further two-month fit note on 11 July 2018. It also held that HMRC was not required to obtain a further occupational health report because the latest report dated 17 May 2018 was sufficiently current and there was no evidence of any material change in the claimant's condition. The tribunal therefore dismissed all claims and made no monetary award.