Background:

The claimant was employed by the respondent as a Custody Prison Officer from September 2007 until his dismissal in April 2020. This followed from a period of sickness absence from April 2019.

The Tribunal accepted the claimant’s evidence about stress and related sickness absence.  The Tribunal accepted it arose from a vigil/protest held at the prison gate where the claimant worked. It related to a prisoner who had committed suicide. The claimant felt threatened on occasion following confrontation with a family member. The protest came to an end in June 2019.

The claimant’s absence was managed under the Inefficiency Sickness Absence Policy which stated: ‘Should the Department decide that based on the medical evidence including, an up-to-date OHS assessment, it can no longer sustain your absence, you will be invited to a meeting with Departmental HR or line management. The purpose of which will be to consider dismissal.’

The Occupational Health Report noted the stress and that the claimant could not return to work. It noted he could return should there be a resolution relating to the work-related issue. There were a series of reports and in December 2019 the report acknowledged the symptoms of stress but that the claimant would be fit to return on a phased basis with no public facing duties. There were review meetings and the final meeting outlined that it could be progressed to Head of Employee Relations. The claimant did not attend the meetings citing that he could not enter the place which caused the health conditions.

The claimant’s case was progressed and a dismissal meeting took place. The respondent decided the claimant was to be dismissed with notice on the grounds of inefficiency from unacceptable attendance. The respondent considered a range of factors including the illness, alternative roles, sickness absence record and the applicability of the Disability Discrimination Act. The claimant brought a claim for unfair dismissal and disability discrimination.

Outcome:

In terms of disability discrimination, the claimant used another member of staff, CPO Doherty, as the comparator. CPO Doherty went on leave due to the protest but returned to his duties when it ended in June 2019 with no adjustments. As a result, CPO Doherty was not deemed to be in a comparable situation. The respondent argued that it did not have knowledge of the mental health disability. The Tribunal found that the absences related to stress were a reaction largely to an external situation rather than indicative of an underlying mental impairment. Indeed, it was felt that the respondent acted reasonably in relying upon the advice of Occupational Health and that they were not aware of a mental impairment meeting the definition within the Disability Discrimination Act.

In terms of the dismissal, it was found to be procedurally and substantively fair. This was on the grounds of ill-health capability. It was found reasonable that the respondent could not wait any longer for the claimant to resume fitness. Whilst there were adjustments that could be made, they were so significant that the claimant remained unfit for his substantive role as a CPO. The claimant’s case was dismissed.

Practical Guidance for Employers:

This case provides some useful guidance on capability dismissals vis-à-vis employees who are on long-term sickness absence. The Tribunal examined the reasonableness of the employer in terms of waiting for the claimant to be able to return to work. Considering that following many months of absence the Occupational Health Report was unable to give a definitive return to work date meant that the decision of the respondent was reasonable.

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