Laura McKenna

Whenever an employee’s health is an issue, obtaining the right medical evidence is going to be crucial in ensuring a subsequent dismissal is both fair and non-discriminatory. Medical evidence may also be needed to establish what reasonable adjustments are required. This may take the form of medical reports from an employee’s GP or consultant or a report from Occupational Health (OH).

In Brightman v TIAA Ltd the employer had the particularly complicated scenario of dealing with an employee who had had, over the preceding couple of years, a number of prolonged periods of ill health absence but, at the time of the dismissal, was attending work. It was accepted that the claimant was disabled, having brittle asthma which required her to carry her own oxygen, and a blood clotting problem that required a central venous line. The asthma had not caused any significant problems since early 2016 but the claimant had repeated problems with the central line becoming infected.

A report was obtained from the claimant’s GP in December 2015 which said she was fit for her role, that there were problems with infection and that her asthma was deteriorating which could lead to further longer absences. However, she would be able to manage her work in between these episodes, as she had been doing for a number of years. The claimant agreed to an OH examination in April 2016 but its release to the employer was delayed until October 2016 due to some concerns the claimant had regarding its content. The OH report provided an assessment of the claimant’s fitness to work, not a prognosis of her health. It concluded that she was fit for work but that her asthma was likely to cause further unpredictable absences.

At the time of her dismissal in January 2017, the claimant had been working for three months without absence. She disputed that the medical evidence reflected her current state of health which she believed would improve but she did not provide any new medical evidence to support that assertion. She did though confirm that she had changed her medical team and was optimistic about her future. Her employer decided her absence levels were unlikely to improve and dismissed her for reasons of capability. She made claims of unfair dismissal, disability discrimination and a failure to make reasonable adjustments.

An employment tribunal dismissed her claims. At the hearing, the employer had produced evidence that was not available at the time of the dismissal which indicated the claimant’s health did not improve until a year later in 2018. The tribunal used that to conclude that the employer could not have been expected to wait any longer to dismiss.

On appeal, the Employment Appeal Tribunal (EAT) found it significant that at the time of the dismissal the claimant was back at work; that the GP and OH reports were 6 and 12 months old respectively; that the OH report assessed fitness to work not prognosis; and that the claimant had a new medical team in place and was optimistic of improvement in future. The tribunal had erred in taking into account medical evidence relating to what happened after the date of dismissal, as that was not relevant to the decision to dismiss. 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 the tribunal to fill in an evidential “gap”.

Another factor that did not assist the employer was that, while stating they were not able to support the unpredictable nature of the claimant’s absence, the evidence suggested they had done so for a number of years. 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.

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 the content of that evidence must focus on the relevant issues. That requires employers to properly consider what information they need at the time of instructing a medical report and to ask the right questions of the medical examiners to obtain that information. This is going to 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.

Arguments regarding the inability of an employer to continue to support an employee may sound reasonable on paper but it is essential that they 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 it is essential that this point is clarified before a final decision is made.

Laura McKenna is an associate at Morton Fraser.