Claimant v South East Coast Ambulance Service NHS Foundation Trust

The tribunal found the reason for dismissal was capability (19 months absence with no prospect of return to substantive role based on OH advice). The dismissal was within the range of reasonable responses. While the process was not perfect (e.g. delay in formal process, redeployment register timing, brief appeal outcome), taken as a whole it fell within the range of reasonable responses. The respondent obtained medical advice repeatedly, consulted with the claimant throughout, followed its policy (extending triggers twice), and made efforts to find alternatives.

The respondent accepted the claimant was dismissed because of something arising from his disability (his absence). The tribunal found the dismissal was a proportionate means of achieving the legitimate aims of ensuring regular and effective service and effective resource management. The claimant had been absent 22 months by dismissal, OH advised he was unfit for any work and unlikely to return to substantive role in foreseeable future, 85% of workforce were front-line (which he couldn't do), and redeployment efforts had been made during the notice period.

The tribunal found the respondent applied a PCP of requiring all employees who had been absent through injury to do a fitness test. This put the claimant at substantial disadvantage due to his shoulder injuries—he could not complete it and attempting it aggravated his condition. The respondent knew or ought to have known of this disadvantage. While it would not have been reasonable to exempt him entirely from fitness testing (OH recommended it; his role was physical), it would have been reasonable to delay the test during his first return to work in August 2021 when he was only driving the OSV (no CPR or patient handling required). The respondent itself delayed the test in the second return to work plan in September 2021, showing it was reasonable to do so.