Claimant v Swindon Borough Council
Outcome
Individual claims
The tribunal found that although the respondent treated the claimant unfavourably by applying the absence management policy and dismissing him, and this was because of something arising from his disability (sickness absence caused by Epstein-Barr virus), the treatment was a proportionate means of achieving legitimate aims. The claimant had 255 days of sickness absence over two years. The tribunal found that allowing the claimant to work from home five days per week would not have alleviated the high levels of sickness absence, as evidenced by 35 days absence during a period when he was working fully from home. The respondent's aims of managing absence, maintaining customer service, and supporting the team outweighed the discriminatory effect, and there were no adjustments that would have meaningfully improved the situation.
Facts
The claimant was a customer information guide employed by the council from 2008 to 2023. He developed Epstein-Barr virus in 2020, causing chronic fatigue and brain fog. He was absent for 255 days over two years due to the condition. Occupational health repeatedly recommended working from home. The respondent initially allowed him to work from home two days per week, but after serious IT/telephone issues during the pandemic, required all staff to return to the office. The claimant was dismissed in May 2023 after the absence management policy was applied through stages 1-3.
Decision
The tribunal found that although the respondent's treatment was unfavourable and because of something arising from the claimant's disability, it was a proportionate means of achieving legitimate aims. The tribunal concluded that allowing the claimant to work from home five days per week would not have reduced his very high sickness absence levels, as evidenced by his absence record when he did work fully from home. The respondent's needs to maintain its critical public telephone service outweighed the discriminatory effect.
Practical note
A failure to implement occupational health recommendations for adjustments will not always defeat a proportionality defence if the tribunal finds, on the evidence, that the adjustment would not have alleviated the disadvantage in question.
Legal authorities cited
Statutes
Case details
- Case number
- 1405576/2023
- Decision date
- 23 April 2025
- Hearing type
- full merits
- Hearing days
- 5
- Classification
- contested
Respondent
- Sector
- public sector
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Customer Information Guide
- Service
- 15 years
Claimant representation
- Represented
- Yes
- Rep type
- lay rep