Claimant v Hertfordshire County Council

The tribunal found the reason for dismissal was capability (long-term sickness absence with no prospect of return). The dismissal was within the range of reasonable responses: the respondent consulted with the claimant multiple times at health review meetings before the capability hearing; obtained up to date occupational health reports stating there was no timescale for return; gave the claimant opportunity to put her case at a 4-hour hearing; considered reasonable adjustments and support provided over 2 years; and waiting 2 years before dismissal was going the extra mile. The tribunal rejected the claimant's argument that failure to implement reasonable adjustments caused her incapacity.

The tribunal found the claimant was not treated less favourably than actual comparators (Fabian Marshall-Joseph and Ellie Marshall). Where differences in treatment existed (e.g. 6-month vs 2-year contract renewal), the tribunal found these were due to the claimant's lack of confirmed BTEC Level 3 results rather than disability. The tribunal found no evidence that treatment was because of disability.

The tribunal found that where unfavourable treatment occurred (e.g. 6-month contract rather than 2-year), it was not because of something arising from disability (sickness absence or hospital appointments). The tribunal found the respondent's actions were a proportionate means of achieving legitimate aims of ensuring employees have necessary qualifications and paying staff appropriately.

The tribunal found some adjustments were reasonable and not made (e.g. ergonomic chair, larger laptop, stress risk assessment) but many alleged PCPs and disadvantages were not established. Crucially, the tribunal found no evidence that implementation of reasonable adjustments would have enabled the claimant's return to work—none of her sick notes mentioned adjustments, she never discussed adjustments with her GP, and occupational health reports did not suggest adjustments would aid return. The tribunal also found many claims were out of time.

The tribunal considered comments made at health review meetings on 11 May, 18 June and 8 September 2021. The tribunal found most comments attributed to Victoria Saunders and Katey Skeggs were not made as alleged. For Neil Richardson's comments, the tribunal found they were not unwanted conduct as the claimant did not raise concerns at the time or in her grievance. In any event, the tribunal found the comments were sympathetic and supportive, and neither the purpose nor effect was to violate dignity or create an intimidating, hostile, degrading, humiliating or offensive environment.

The tribunal accepted the claimant did protected acts (grievance 28 June 2021, ET claim 11 January 2022). However, the tribunal found the alleged detriments were not because of the protected acts: the 6-month contract was offered because of lack of confirmed results not the grievance; there was no unreasonable delay in the grievance process; the failure to implement some reasonable adjustments was not because of the protected acts; and the dismissal decision (taken by Ms Alder and upheld by Mr Woodman on appeal) was not materially influenced by the protected acts, despite knowledge of them, given the long gap since the grievance and its lack of substantive upholding.