Claimant v Secretary of State for Justice

Tribunal found respondent did not act reasonably in treating capability (ill health) as sufficient reason for dismissal. Dismissal was based partly on erroneous belief that claimant had received warnings which he had not. Decision to dismiss after only 14 weeks continuous absence was premature given occupational health report indicated claimant expected to return and claimant committed to returning before end of December. Employer could reasonably have waited longer.

Tribunal found hypothetical comparator without PTSD but otherwise in same material circumstances would have been treated identically. Decision on work allocation took no account of disability. Dismissal decision was based on absence levels and continuous absence, not because of PTSD itself. Comparators were not in materially similar circumstances.

Dismissal was unfavourable treatment because claimant was absent from work, which arose from his PTSD. Dismissal was not a proportionate means of achieving respondent's legitimate aims (ensuring fitness, health and safety, staffing levels, prison operation). Balancing needs of prison against discriminatory effect, dismissal at that point in time was not proportionate given same factors as unfair dismissal claim.

Decision not to place claimant in Externals role was not because claimant was absent from work. Evidence showed absence was not part of decision-making process for role allocation at all.

Respondent failed to make reasonable adjustment of not dismissing claimant on 11 December 2023. Reasonable adjustment would have been to defer dismissal decision to later date, taking account of fit note extending to 28 December, claimant's commitment to returning, and positive occupational health prognosis. Further FARM meeting could and should have been arranged.

Other adjustments claimed either already addressed (extending period - covered by not dismissing), would not avoid disadvantage (trigger points not the reason for dismissal; Externals role would not have made claimant fit for work on 11 December), or were not reasonable (delaying earlier absence meetings).