Dr S Singh & Mr P O’Hagan Mrs J Macpherson v Represented by: Mr G Woolfson - Solicitor Commissioners for HM Revenue and Customs — 2025

Mrs Macpherson started employment with HMRC on 7 January 2002. After a skin cancer diagnosis in August 2021 she was absent from work, returned on a phased basis from 27 January 2022 to 17 March 2022, and then went off sick again from around 18 March 2022 until the end of her employment. An occupational health report dated 13 September 2022 said she remained unfit for work, that any return timescale was difficult to predict, and that no adjustments could then be identified to facilitate a return. During the final hearing the tribunal refused an amendment application made after evidence had closed, applying Selkent and Vaughan, because it would have introduced new out-of-time allegations about a "timeline" and would have required further evidence.

The tribunal found that Ms McNally had been following HMRC’s Supporting Your Attendance policy and had discussed it with the claimant, including by letter on 16 March 2023. On 19 June 2023 Ms McNally recorded that there was still no clear indication of a timeline to return to work and that, because the absence had become unsustainable, the business route would be dismissal via referral to an independent decision manager. The tribunal accepted the contemporaneous note and found that Ms McNally did not tell the claimant that she had to provide a definitive return date, or that her options were to return to work, resign, or be dismissed.

On that basis the tribunal dismissed the unfair dismissal and constructive dismissal complaints. It held that the claimant resigned on 28 June 2023 of her own accord rather than being dismissed, and that the 19 June 2023 call was not a repudiatory breach of contract or a breach of trust and confidence. The discrimination arising from disability complaint also failed because the alleged unfavourable treatment did not occur, so the tribunal did not need to decide justification or time bar.

The reasonable adjustments complaints also failed. The tribunal held that HMRC did not have a provision, criterion or practice requiring employees to work full duties, because the policy allowed a phased return when the employee was fit, and it did not have a provision, criterion or practice requiring employees who were absent to provide a definitive return date. As those PCPs were not made out, the tribunal did not need to decide substantial disadvantage, knowledge, or limitation issues. The age discrimination, breach of contract, and the reasonable-adjustments complaint concerning the voluntary redundancy exit scheme were withdrawn at the outset and recorded as dismissed.