The claimant was employed by the respondent as a primary care support administrator in April 2013.   There were aspects of the job that required her presence at the office whereas others could be completed from home.   The claimant suffered from symptoms of chronic anxiety for many years and she was regarded as being disabled in line with the legislation throughout the pertinent times.

The claimant’s attendance at work had been relatively stable from 2013-2015 but in 2016 it had increased from about 3 absences per year to 6.  In 2017, there were further absences as a result of her younger brother and grandmother dying.  There were short absences following this before her father died in February 2018.  This led to absences connected with anxiety in 2018 and a longer absence from March until June.   Whilst a phased return was commenced, there were more absences leading to a continuous absence which lasted from 30th November until January 2019.    There were policies in place outlining the adjustments that could be made for those who had been absent for a period of time including phased return and workplace adaptations. A plan had been put in place in which a certain number of absences would trigger a move onto the next stage.  The phased return was attempted but the claimant only completed less than half of her contracted hours as she would become unwell and would want to return home.

As a result of the absences, the claimant triggered stage 4 where there was a formal review which could result in termination.   This stage continued for some time culminating in a dismissal.  In coming to the decision to dismiss, there was consideration of redeployment, but it was found that the organisation would not be able to devote significant enough resources to protect the claimant from the organisational change that appeared to have an impact on her wellbeing/anxiety. The claimant appealed this decision which was refused.  On foot of this, she brought a claim for unfair dismissal as well as disability discrimination.

The respondent put forward the reason of capability for the dismissal stating that the claimant could not undertake the work because of her health.   The Tribunal held that the decision to dismiss for the reason of capability was reasonable in the circumstances.   In considering the claim that there was a failure to make a reasonable adjustment, the Tribunal outlined that there had been a consideration of other jobs within the organisation or other ways of doing the job, but they would have gone beyond what would have been reasonably expected of the respondent.

Practical Lessons

This case demonstrates the difficult situations when absences and disability come together.  The employer must act sensitively to those circumstances and with the range of bereavements in this case it was incredibly difficult.  However, the Tribunal has stated that they must take into account the circumstances of the respondent and that whilst there is a duty to make adjustments, they must only be reasonable. Therefore, where there is a high level of absences then capability can ground a dismissal.
https://www.gov.uk/employment-tribunal-decisions/mrs-kerry-duley-v-nhs-sheffield-clinical-commissioning-group-1803709-2019