Claimant v Kent Community Health NHS Foundation Trust
Outcome
Individual claims
The tribunal found the claimant was not treated less favourably because of her hearing loss or POTS. A hypothetical comparator in the same circumstances (long-term absence, returning with adjustments, same abilities) would have been treated the same way. The policy of 22.5 minimum hours was applicable to all due to business needs. The tribunal found the treatment was in no sense whatsoever due to discrimination.
The tribunal concluded the respondent took all reasonable steps to avoid the claimant's disadvantage. Hours were reduced to 22.5 (the minimum for the role due to a considered policy). A quiet room was agreed and booked. Half-day duty work was to be trialled for three months. However, the claimant never returned to work to trial these adjustments. It was not reasonable to reduce hours below 22.5 given the policy and the requirement for safe care.
The tribunal found the respondent had a genuine belief the claimant was no longer capable of performing her role. The respondent devoted considerable resources to the absence management process, consulted extensively, made numerous OH referrals, and put numerous adjustments in place. By June 2023 the claimant confirmed she could not return to her role. The claimant had not been at work since July 2021 (over 2 years). Dismissal was within the range of reasonable responses. The respondent dismissed the claimant for the fair reason of ill health capability.
Facts
The claimant was a Band 6 Health Visitor with hearing loss and POTS who worked for the respondent NHS Trust from April 2018. She had multiple periods of absence from December 2018. She returned in January 2021 on reduced hours (22.5 per week, the minimum for the role) but was off sick again from July 2021 due to work-related stress and POTS. The respondent made extensive efforts over two years to support her return, including numerous OH referrals and reasonable adjustments (phased return, quiet room, half-day duty work trial). By June 2023 the claimant confirmed she could not return to her role and entered a 10-week redeployment process. No suitable alternative role was found and she was dismissed on 26 October 2023 for ill health capability.
Decision
The tribunal unanimously dismissed all claims. The tribunal found the respondent did not discriminate against the claimant on grounds of disability. The policy requiring Health Visitors to work a minimum of 22.5 hours was applied to all for legitimate business reasons relating to safe care and role requirements. The respondent made reasonable adjustments (quiet room, half-day duty trial) but the claimant never returned to work to trial them. The dismissal for ill health capability was fair: the respondent waited over 2 years, consulted extensively, made numerous adjustments, and the claimant herself confirmed she could not return to her role.
Practical note
Even extensive efforts to support an employee's return to work (including multiple OH referrals, agreed adjustments, and a redeployment period) can result in a fair capability dismissal if the employee remains unfit for their substantive role and no suitable alternative can be found, and minimum hours policies for particular roles can be justified by legitimate business needs.
Legal authorities cited
Statutes
Case details
- Case number
- 2301692/2023
- Decision date
- 16 June 2025
- Hearing type
- full merits
- Hearing days
- 7
- Classification
- contested
Respondent
- Sector
- healthcare
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Band 6 Health Visitor
- Service
- 6 years
Claimant representation
- Represented
- No