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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.

On appeal, the Employment Appeal Tribunal (EAT) overturned the Tribunal’s decision.

The EAT found it significant that at the time of the dismissal the claimant had been working consistently for 3 months; that the Occupational Health and GP reports were 6 and 12 months old respectively and that the claimant had a new medical team in place and was optimistic of improvement in future. The tribunal had erred in considering medical evidence relating to what happened after the date of dismissal, as that was not relevant to the decision to dismiss as it could not have been known at the time the decision was taken. The tribunal should have assessed the claims on the basis of the medical evidence available to the employer at the time of the dismissal. Evidence that post-dated the dismissal could not be introduced at tribunal to fill in an evidential “gap”.

The employer was also criticised for stating they were not able to support the unpredictable nature of the claimant’s absences, as the evidence suggested they had done so for a number of years prior to the dismissal. In fact, the type of work being undertaken by the claimant and her colleagues was subject to fluctuation anyway and there was no evidence to suggest her absences caused significant problems. This potentially undermined the employer’s justification for discrimination arising from disability, but the tribunal had failed to properly consider that point.

Conclusion

While the EAT decision identifies errors in the decision-making process of the tribunal, it also highlights where the employer went wrong. It is essential that employers not only have current medical evidence available to them at the point of deciding to dismiss but also that the content of that evidence focuses on the relevant issues. This in turn requires employers to properly consider what information they need at the time of obtaining a medical report and to ensure that they ask the right questions to obtain that information. This will be particularly important where the employee has returned to work prior to the decision to dismiss being taken. Those taking a decision to dismiss should assess the quality of the medical evidence they have before them and consider whether further investigation is required.

It also highlights the importance of ensuring that any arguments regarding the inability of an employer to continue to support an employee stand up to scrutiny. It appears in this case that the employer could, in fact, support the unpredictable nature of the claimant’s absences because of the way the workload was managed. If the decision maker does not have first-hand knowledge of the position and its demands, it is vital to the fairness of any decision taken that this point is clarified before a final decision is made.

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