The claimant began working for the respondent in June 2014 as a technician in the Art, Food Technology and Design and Technology Departments.   This was initially on a part-time basis, but he moved into a full-time role in February 2016.   The claimant was subsequently dismissed in September 2017.

The issue leading to the dismissal was absence and lateness during 2016 into early 2017.  The claimant was an individual with a disability within the definition given in the Equality Act 2010. The Claimant’s disability was both a physical impairment, psoriatic arthritis, and a mental impairment, that being depression/anxiety.  He had these disabilities during the relevant periods before the dismissal.

The level of absence and lateness increased in early 2017 which was due to a change in the claimant’s mental wellbeing.  The claimant along with his medical advisers sought to correct this through new medication but this caused nausea, dizziness and sedation.  The claimant was usually good at reporting when he was going to be late or absent.  This information would be passed to the HR department who would have it recorded onto their system.  The Tribunal noted that the system was not accurate and recorded those leaving early as actually being late to work and the reports produced differed.

After one bout of absence, there was a return to work meeting and the Claimant was referred to Occupational Health. The OH report recommended that the claimant be restricted from operating hazardous equipment such as a guillotine or circular saw - this was to be temporary until the medication had stabilised.   The Respondent did not seek the Claimant’s views on what adjustments would be necessary and also failed to implement the recommendations and the claimant continued to operate these pieces of equipment.   The only alternatives offered by the Respondent were different roles. These were rejected due to the reduction in pay that came with them.

The respondent took the claimant out of his role as a Technician.  This was communicated in a letter from the Bursar, but the claimant was not given any opportunity to respond.  The respondent’s absence policy was invoked despite the fact that the claimant’s line manager had informed him that everything was ‘ok’ and the line manager had failed to comply with his responsibilities under the absence policy stating that he had an awareness of them but had never read them.  The Claimant was not aware therefore that his attendance or lateness was causing any problem.

A dismissal meeting was arranged which the claimant stated he could not attend as he was suffering with stress and anxiety as a result of the respondent’s actions.  The respondent refused to delay the meeting and the dismissal was simply actioned without the meeting ever taking place.   There was no consideration of the improvement in the absence/lateness record and the appeal instigated by the claimant was ‘never going to succeed’ whilst he was on medication.  As a result of these actions, the claimant brought a claim for unfair dismissal and disability discrimination.

The Tribunal held that there was clearly a case of unfair dismissal and that it was based upon the claimant’s disability.  There had been a failure to follow their own procedures, no investigatory meeting and no warning or improvement plan put forward.  The appeal was no more than an attempt to look like the correct procedures.  As a result of this, the claimant was awarded £117,013 for the unfair dismissal and disability discrimination.

Practical Lessons

This case yet again demonstrates the importance for Employers of engaging with employees to establish what if any reasonable adjustments can be implemented to facilitate their continued employment. The Respondent’s failure to do so and subsequent invoking of the absence procedure to dismiss the Claimant without any recourse to previous warnings failed to take account of the improvement in the Claimant’s attendance and other OH recommendations. Indeed, the action should be scaled looking at improvement plans and warnings before jumping to dismissal as occurred in this case.  This can have a real practical effect as seen with the large compensatory award.
https://www.gov.uk/employment-tribunal-decisions/mr-d-walker-v-old-swinford-hospital-school-1300820-2018