When considering whether medical evidence lodged as part of a tribunal claim can justify the dismissal of a disabled person, the Employment Appeal Tribunal (EAT) has held in Brightman v TIAA Ltd that tribunals must not take into account any material that was not available to the employer at the time of the dismissal.
Basic facts
Ms Brightman suffered from a number of medical conditions which meant that she was disabled for the purposes of the Equality Act. After several prolonged absences in 2015, her employer wrote to her GP asking if there were other adjustments they could make, in addition to those they had already made. They also requested details of her prognosis, including whether she was fit to perform her duties. The GP stated that she was fit to return although he warned that her worsening respiratory condition was likely to lead to longer periods of sick leave. An occupational health (OH) report in October 2016 came to the same conclusion.
After a meeting in November 2016 to discuss possible further adjustments, her employer said they would decide on a way forward and then let her know. Although Ms Brightman had no further absences until the next meeting with her employer in January 2017, she was dismissed. Her appeal against dismissal was unsuccessful on the basis that the OH report was unambiguous regarding her future attendance level and she had not produced further medical evidence to support her view that her attendance would improve.
She lodged a number of tribunal claims, including unfair dismissal, discrimination because of something arising in consequence of disability and failure to make reasonable adjustments.
Tribunal decision
At a case management hearing, Ms Brightman argued successfully that the main hearing should only consider liability, as opposed to the remedy she might be awarded assuming she was successful in her claims. The point of this was to defer the cost of obtaining medical evidence until liability had been decided.
However, at the final hearing on liability, her employer asked to introduce a bundle of additional medical evidence, including evidence about Ms Brightman’s medical condition that post-dated her dismissal. Having agreed to the submission, the tribunal then concluded that the reason for dismissal was capability, based on Ms Brightman’s high level of absence in 2015 and 2016, and her employer’s belief that this was likely to get worse.
EAT decision
The EAT allowed the appeal in relation to unfair dismissal as the tribunal had taken into account post-dismissal medical evidence to fill the gap in the evidence that had been available at the time of the dismissal.
With regard to the claim for failure to make reasonable adjustments, it held that the tribunal should have disregarded what had happened to Ms Brightman’s health after her dismissal. In other words, it should have limited itself to the position at the time the adjustments could have been made, which was no later than the decision to dismiss, or the rejection of the appeal.
As for the claim of discrimination because of “something arising” in consequence of disability, the EAT held that the tribunal identified that the “something” was Ms Brightman’s absence record. The employer justified the dismissal on the basis that it was a proportionate means of achieving a legitimate aim – namely, running an efficient business. However, the tribunal had failed to engage with her challenge to this defence, not least the fact that the company had sustained her absence levels over a period of many years; she had attended work throughout the dismissal and appeal process; the GP report was over a year old by the time of her dismissal; she was under the care of a new medical team and was “optimistic for the future”.
The EAT remitted the unfair dismissal and disability discrimination claims to a different tribunal for rehearing.
Comment
This case demonstrates how carefully employers should tread before dismissing an employee who has prolonged periods of sickness absence. Medical evidence should be obtained that is up to date and that should be considered at the time of dismissal.