Background:

The claimant was employed as a Deputy Logistics Manager from 2003 until her dismissal in September 2020.  The respondent conceded that the claimant was disabled within the meaning set out in the Disability Discrimination Act.

There were a number of issues relating to the claimant’s back pain leading to a number of reports from occupational health.  This did start with some adjustments being recommended but culminated in the claimant going off sick in June 2019 and she never returned to the workplace.  A capability hearing took place with the claimant in August 2020 (she had had her first back surgery and had her second major surgery just after this meeting) and she was dismissed on 24th September 2020. The claimant appealed this outcome but it was unsuccessful. The Tribunal did praise the decision maker in the appeal for getting another report to see if there had been any change medically from the decision to dismiss and the time of the appeal.  The basis of the dismissal, as set out in the letter, was related to the occupational health reports noting that it is unlikely that the claimant would be fit for work for the longer-term future with one stating at least 4 months and another stating up to one year. It is likely that it would take the claimant to a period of 2 to 2 and a half years off sick. The Tribunal found that the claimant was unfit for any work from June 2019 so it was not possible to make reasonable adjustments.

Outcome:

The Tribunal found that the actions of the respondent in relation to the process and the substantive decision to dismiss were within the band of reasonable responses and there was no unfair dismissal.   The fair reason was capability bearing in mind the medical evidence and the prognosis of a further lengthy period without a return to work.  On the procedure, the Tribunal did note that the capability hearing took place by way of telephone but this was due to the circumstances of the pandemic.  The Tribunal were satisfied with how it was conducted with the decision maker taking the claimant’s version of events by way of telephone.

The claimant further brought a claim relating to disability discrimination arising from the failure to ensure that the reasonable adjustments recommended by occupational health were put into action.  The Tribunal found that the claimant did not discharge the burden.  Part of it was relating to being compelled to do manual work which was not found by the Tribunal.  Additionally, the Tribunal found that there were occasions in which the claimant did do some relevant manual work but when it came to the attention of managers they asked her to desist.  As a result, all of the claims were dismissed.

Practical Guidance for Employers:

This case deals with the difficult issues of long-term sick leave with little prospects of return in the short to medium term.   This case demonstrates the benefit of having continued reports from occupational health to see if there is any change.  It does come to a point where the prognosis is demonstrating that there will be a continued long-term absence that action can then be taken.   These issues of long-term absence are usually intertwined with disability and so claims of disability discrimination may also be brought.  It must be remembered that it will be for the claimant to prove that there has been discrimination on the grounds alleged.  In this case, it was not proven so the claim was dismissed.

NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/