Advice Clinic - Unfair Dismissal & Disability Discrimination

The claimant was employed by the respondent as a Legal Secretary from 1999 to 2013. She was diagnosed with osteoarthritis in 2008, and the same year had an operation to improve her medical condition particularly the osteoarthritis in her right hip. She had taken a significant amount of sick leave during her employment. A medical report stated the claimant was awaiting a major reconstructive procedure and that it was not possible to determine an accurate recovery time. At a medical capability hearing in January 2013, the respondent accepted the claimant was a disabled person. It was also discussed whether there were any reasonable adjustments that could be made to her post to facilitate her return to work. The claimant asked if she was able to work from home given her lack of mobility. Regarding working from home, it was determined that the majority of the claimant’s role was office based as files needed to be physically opened in the office, recorded and stored and therefore was not possible. The respondent also considered the possibility of suitable alternative employment but there were no suitable vacancies. Any other alternative roles available within the company required conveyancing experience or qualifications which the claimant did not have. The claimant’s employment was terminated on the grounds of medical capability. She claimed unfair dismissal and disability discrimination. The key issues for the tribunal to determine were: –       Could the respondent show a potentially fair reason for dismissal, namely one which related to capability? –       Was the dismissal linked to her disability? –       Had the respondent failed to consider all reasonable adjustments prior to the dismissal? The Tribunal accepted the respondent’s evidence and concluded the claimant had been dismissed for a reason which related to capability. They were satisfied the respondent had a genuine belief the claimant was incapable of her work and would remain so for the foreseeable future. They also concluded on the medical evidence provided it was impossible for the respondent to identify a date for a return to work, and there was no date or timescales on the medical report or from the claimant regarding the further operation required. The Tribunal decided that, because the medical evidence obtained unanimously said the claimant was not fit for any work at all, there was no need to obtain a further medical report. The claimant contended the respondent should have allowed for more unpaid sick leave and allowed for a further operation to take place and then await the prognosis of the operation. The tribunal rejected this argument as they felt it would be unreasonable to expect an employer to wait indefinitely over a period of what could be years for a further medical position to become clearer. There was no confirmed date for any operation in the future or for a return to work and the medical evidence clearly confirm there may be no improvement on the claimant’s condition.  Key points:
  • The dismissal had been fair in light of the medical evidence
  • The respondent had not failed in its duty to make reasonable adjustments – it had given them due consideration
  • The claimant had not suffered direct/indirect discrimination
  • There was no reassurance that any further medical treatment would improve the condition or reassurance of a possible return to work

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