Claimant v London General Transport Service Limited

The tribunal found the reason for dismissal was capability (long-term sickness absence), a potentially fair reason. The respondent followed its written procedures, conducted a reasonable investigation considering medical evidence from the GP and company doctor, consulted with the claimant regularly, and made reasonable attempts to facilitate return. The decision to dismiss after 4 months' absence with no clear return date was within the range of reasonable responses. The dismissal was not for making protected disclosures (none were made) nor because of disability discrimination.

The claimant failed to establish that she made protected disclosures. The statements relied upon were updates about her medical condition and fitness to work, which did not constitute disclosure of information in the public interest tending to show breaches of legal obligations or health and safety dangers. The claimant gave no evidence as to why she believed the disclosures were in the public interest or tended to show matters under s43B Employment Rights Act 1996. The respondent was seeking information about her return date, not forcing her back prematurely. Without establishing protected disclosures were made, the claim that dismissal was for making them necessarily fails.

The named comparators were not in materially similar circumstances — they were not bus drivers and worked in non-driving roles where absence could be more easily managed. Considering a hypothetical comparator (a bus driver with a shoulder complaint not meeting the disability definition), the tribunal found no facts from which they could infer less favourable treatment because of disability. The respondent followed its written policy consistently, was unaware the claimant met the statutory definition of disability at the time (per McClintock), and the witnesses' evidence showed capability concerns, not discriminatory motivation. The burden of proof did not shift to the respondent.

The tribunal found the claimant was treated unfavourably (dismissal, rejection of appeal, loss of sick pay, insistence on return date), and that this arose from her inability to drive and her absence, which in turn arose from her disability from 19 July 2022. However, the respondent established justification. The aims (providing a reliable bus service, acceptable staff attendance, properly managing long-term sickness) were legitimate. The treatment was a proportionate means of achieving those aims: after 4 months with no known return date, continuing to employ the claimant would impose unreasonable cost and administrative burden on the respondent. The decision to dismiss was justified.

The tribunal found the respondent did not know and could not reasonably have been expected to know the claimant was disabled under the Equality Act 2010. The claimant never told the respondent she was disabled, did not discuss substantial adverse effects on day-to-day activities, and the company doctor's report did not flag disability. The respondent expected a short-term absence and regularly reviewed return prospects. Without actual or constructive knowledge of disability, there was no duty to make reasonable adjustments. Even if there had been, no reasonable adjustment could enable the claimant to drive a bus or perform her role; the suggested adjustments (continued sick pay, waiting longer, alternative work) were unreasonable — there was no suitable alternative work available.

The tribunal accepted the conduct (long-term sickness management and dismissal) was unwanted but found it did not have the purpose of violating the claimant's dignity or creating an intimidating environment. The purpose was to manage absence and dismiss fairly. While the claimant found the process frightening, given the tribunal's findings that the dismissal was fair and not discriminatory, it was not reasonable for the claimant to perceive the conduct as harassment related to disability. The natural stress and fear of dismissal for ill health is not the same as harassment related to a protected characteristic.