Mrs R Yunas v London Borough of Hackney (England and Wales : Unfair Dismissal) -[2021] UKET 3201672/2019- (12 January 2021)

Key Facts

Issues

• The seventh issue was whether the dismissal was unfair as the Claimant had informed the Respondent she intended to return to work on 27 March 2019. The Tribunal assessed if the Respondent's decision to proceed with dismissal, despite this communication, was unreasonable, especially since the Claimant had a history of multiple absences and previous failed attempts to return.
• The fourth issue was whether the Respondent ignored the Claimant's comments during the dismissal meeting that her health was improving, particularly after changing her medication. The Tribunal examined if the Respondent's decision to dismiss was unfair given these statements, which suggested a potential for improved attendance.
• The sixth issue was whether the dismissal was unfair for not implementing a phased return to work combined with home working, which the Claimant had requested. The Respondent's witnesses acknowledged that homeworking could be a reasonable adjustment but argued that the decision to dismiss was based on the overall assessment of the Claimant's ability to sustain attendance, not just the immediate need for homeworking.
• The third issue was whether the Respondent ignored comments from the Occupational Health Service (OHS) that the Claimant was expected to return to work and be fit to continue her role. The OHS reports indicated she would recover from depression, but the Respondent considered her past absence record as a predictor of future absences. The Tribunal assessed if this was a reasonable interpretation of the OHS advice.
• The eighth issue was whether the dismissal was unfair due to the Claimant being treated differently compared to ZM, who had a single 17-month absence before termination. The Tribunal considered if ZM's circumstances were sufficiently similar to the Claimant's to warrant the same treatment, noting that ZM's absence was due to a different cause (managerial issues) and had a different employment history.
• The second issue was whether it was unfair for the Respondent to consider the Claimant's sickness absence starting from 2008 instead of the beginning of her employment in 1989. The Claimant argued that the Respondent should have excluded absences related to her disabilities (depression and transverse myelitis) and considered the rest of her 30-year employment history. The Tribunal examined if this approach was unreasonable, particularly given the policy changes in 2014 that made trigger levels stricter.
• The fifth issue was whether the dismissal was unfair due to the lack of updated Occupational Health (OH) information. The OH reports from October and December 2018 were three months old by the time of dismissal in March 2019. The Tribunal evaluated if the Respondent's reliance on these older reports was unreasonable, considering the possibility of new information emerging in a follow-up report.
• The first issue is whether the dismissal of the Claimant was for capability, a potentially fair reason under Section 98(2) of the Employment Rights Act 1996. The Tribunal needed to determine if the Respondent's decision to dismiss was justified under this provision, considering the Claimant's history of sickness absence and the procedures followed.

Holdings

• The claim for unlawful discrimination under Section 15 of the Equality Act 2010 (disability discrimination) was dismissed, with the Tribunal concluding the Respondent lacked actual or constructive knowledge of the Claimant's depression as a disability.
• Claims under Sections 20 and 21 of the Equality Act 2010 (failure to make reasonable adjustments) were dismissed, as the Tribunal determined the duty to adjust did not apply due to the Respondent's lack of knowledge about the disability.
• The Claimant's claim for unfair dismissal was dismissed as the Tribunal found the dismissal was a reasonable decision based on her long history of sickness absence and the advice from Occupational Health Service reports.

Legal Principles

• The tribunal applied the legal standard that the Respondent's lack of knowledge of the disability (depression) was a valid defense under Schedule 8, paragraph 20 of the Equality Act 2010, even if the employer could reasonably have been expected to know.
• The tribunal applied specific legal provisions including Section 98(4) of the Employment Rights Act 1996 (fair dismissal criteria), Sections 15, 20, and 21 of the Equality Act 2010 (disability discrimination and reasonable adjustments), and Schedule 1 of the Equality Act 2010 (definition of disability).
• The tribunal determined that the Respondent did not have actual or constructive knowledge of the Claimant's depression as a disability, which is a defense under the Equality Act 2010. The burden of proof for establishing disability discrimination lies with the Claimant.

Precedent Name

• Iceland Frozen Food Ltd v Jones
• Environment Agency v Rowan
• NCH Scotland v McHugh
• Doran v Department for Work and Pensions
• Gallop v Newport City Council
• A v Z
• London Underground Ltd v Vuoto
• O'Brien v Bolton St Catherine's Academy
• East Lindsey District Council v Daubney
• Lynock v Serial Packing Ltd
• Griffiths v Secretary of State for Work and Pensions
• Pnaiser v NHS England
• McAdie v Royal Bank of Scotland

Cited Statute

• Equality Act 2010
• Employment Rights Act 1996

Judge Name

Passage Text

• We are satisfied that the Respondent was not aware the effects of the depression were likely to recur after the first episode, nor was it aware that it was an ongoing condition.
• We find that the reason for the dismissal was capability, a potentially fair reason under Section 98(2). Mr Umney made his decision on 19 March 2019 following the meeting on 27 February.
• Schedule 8, paragraph 20 of the Equality Act 2019 provides that lack of knowledge of disability is a defence to Section 20 and 21, in that the Respondent is not subject to a duty to make reasonable adjustments where it does not know, and could not reasonably be expected to know, that that an interested disabled person (its employee) has a disability and is likely to be placed at a disadvantage by the PCP.