Posted Date: 31st January 2023

A disability can be defined as a physical or mental impairment, which has a substantial and long-term adverse effect on someone’s ability to carry out normal day-to-day activities. ‘Long-term’ means that the impairment has lasted, or is likely to last, for at least 12 months.

Under the Equality Act 2010, it is unlawful to discriminate against someone with a disability. This includes treating a disabled person unfavourably because of something which is a consequence of their disability, for example being absent from work due to a disability-related absence. An employer could only discriminate if they had known, or would reasonably be expected to know, that a person is disabled. This law extends to self-employed workers.

If an employer can demonstrate that any unfavourable treatment towards a worker with a disability is proportionate behaviour towards achieving a legitimate aim, they are able to justify their actions.

In the case of Brightman v Tiaa Ltd, the claimant (the employee) had worked for the respondent (the employer), since 2008 and was classed as disabled under the Equality Act 2010 due to long-term health conditions. Despite her health conditions, she was capable of performing her duties to the required standard when she was well enough to work and was a valued employee.

Since 2008, the employee’s disability caused repeated long periods of absence and her working hours were also repeatedly reduced. In 2017 she was dismissed on the basis of capability due to ill health. The employer felt they were able to justify this decision due to:

• The medical evidence provided to them
• Her low level of attendance, which the employer expected to continue
• The fact that no further reasonable adjustments could be made and there were no alternative roles available

The employee appealed the dismissal decision but was unsuccessful, therefore brought claims to the Employment Tribunal (ET) based on unfair dismissal, disability discrimination and failure to make reasonable adjustments.

The ET dismissed the employee’s claim, claiming that the employer had acted fairly.

The employee appealed the ET’s decision and the claim was bought to the Employment Appeal Tribunal (EAT). The EAT disagreed with the decision made by the ET on the grounds that the decision to dismiss the employee was based on evidence from a GP report which was over a year old at the time of the dismissal, and an occupational health report, used to assess the employee’s fitness for work, which was completed six months prior.

Other factors which led to the EAT’s decision included:

• The dismissal was due to capability, however the employee had been attending work three months prior without any absence and throughout the dismissal and appeal process, therefore was capable of working
• The employee was under the care of a new medical team at the time of the dismissal and was more ‘optimistic about the future’
• The decision had not been based on the fact that the employee was on long-term sick leave, but more the fact that the employer feared there would be more periods of long-term sick leave in future.

This case highlights the importance of relying on the most up to date evidence before deciding on dismissal, being medical reports in this instance, and properly considering medical conditions and prognoses before making the decision to dismiss.