Claimant v Secretary of State for Work and Pensions
Outcome
Individual claims
Dismissal fell outside range of reasonable responses due to failure to refer claimant to DWP long covid clinic. Respondent failed to follow its own highly relevant policy. Dismissing manager and appeal officer failed to appreciate importance of applying policy even at late stage. Any reasonable employer would have applied this policy.
Withdrawn by claimant on first day of February 2025 hearing
Respondent treated claimant unfavourably by dismissing her and by not referring her to DWP long covid clinic from 11 October 2022, something arising from her disability (her absence). This was not a proportionate means of achieving legitimate aim. Need to have employee performing duties did not override need to allow claimant benefit of respondent's own policy.
Claimant unfit to work throughout two year absence with no return 'on the horizon'. No prospect that proposed adjustments (referral to DWP clinic or adjusting attendance levels) would enable return to work. Duty not triggered per McHugh - no reasonable adjustment could work when no prospect of return.
Sum agreed during 2024 hearing, payment made in February 2025 salary run, claim withdrawn by claimant
Sum agreed during 2024 hearing, payment made in February 2025 salary run, claim withdrawn by claimant
Facts
Claimant, a part-time Work Coach employed since 2012 with pre-existing pulmonary embolisms, contracted Covid in January 2021 developing POTS and Long Covid. She remained continuously absent and unfit for work for over two years. In December 2021 Occupational Health recommended referral to DWP's Long Covid Clinic but manager failed to action this. Despite receiving extensive NHS treatment she showed no material improvement. She was dismissed in February 2023 for capability after being referred to decision-maker in October 2022.
Decision
Tribunal found dismissal unfair because respondent failed to refer claimant to its own DWP Long Covid Clinic as recommended by OH and required by policy. Discrimination arising from disability claim succeeded on same basis - failure was not proportionate means of achieving legitimate aim. Reasonable adjustments claim failed as claimant had no prospect of returning to work so duty not triggered. Claimant awarded basic award plus injury to feelings but no loss of earnings as would have been fairly dismissed three months later after clinic involvement.
Practical note
An employer's failure to follow its own relevant policy supporting disabled employees, particularly one specifically designed for the employee's condition (long covid clinic referral), will render a capability dismissal unfair even where the employee has been absent for two years with no prospect of imminent return.
Award breakdown
Vento band: middle
Legal authorities cited
Statutes
Case details
- Case number
- 3309480/2023
- Decision date
- 14 March 2025
- Hearing type
- full merits
- Hearing days
- 9
- Classification
- contested
Respondent
- Sector
- central government
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Work Coach
- Service
- 11 years
Claimant representation
- Represented
- Yes
- Rep type
- barrister