In the recent case of Brightman v TIAA Ltd, the employer was faced with the task of dealing with an employee who previously had a number of long-term ill-health absences but, at the time of the dismissal, was attending work regularly.
The employer accepted that the claimant was disabled on account of her chronic asthma which required her to carry her own oxygen and a blood clotting problem that required a central venous line. The claimant’s asthma had been under relative control since early 2016 but the claimant had repeated problems with the central line becoming infected which was the cause of her absences.
The employer requested a report from the claimant’s GP in December 2015 which said that, though she was fit for her role, there were problems with infection and that a deterioration in her asthma could lead to further longer absences. The report further stated that the employee should be able to manage her work in between these episodes, as she had been doing previously. Following this report, the claimant agreed to an Occupational Health examination in April 2016 but the report was delayed until October 2016 due to concerns the claimant had regarding its content. The report concluded that the claimant was fit for work but that her asthma was likely to cause further unpredictable absences in the future.
At the time of her dismissal in January 2017, the claimant had been working for a period of three months without absence. The claimant disputed that the medical evidence gathered by the employer reflected her current state of health which she believed would improve but she did not provide any new medical evidence to support this assertion. The employer decided her absence levels were unlikely to improve based on the medical evidence gathered and dismissed her for reason of capability. The claimant brought claims of unfair dismissal and disability discrimination.
An employment tribunal dismissed her claims. As part of its defence, the employer produced evidence that indicated the claimant’s health did not improve until a year later in 2018. The tribunal used this evidence to support their finding that the employer could not have been expected to wait any longer to dismiss.