Posted Date: 2nd September 2025

 

An employment tribunal found that the Ministry of Justice (MoJ) unfairly dismissed a prison officer after failing to accommodate his epilepsy diagnosis, awarding him £444,960 in compensation.

Background

The claimant, Mr Mullinger, began working at HMP Holme House, a cat B prison, in March 2019, and had occasional short-term sickness throughout 2019-2022, due to a musculoskeletal issue with his feet, of which led to restrictive duties.

Mullinger experienced a seizure while on holiday in November 2022 and was formally diagnosed with epilepsy in January 2023. He informed his line manager, Ms Davies, and was subsequently assigned restricted duties in a Band 2 operational support role.

An occupational health (OH) assessment later that month confirmed Mullinger was fit to work with adjustments, recommending a six-month seizure-free period before resuming full responsibilities. He continued working, with only minimal absences for an MRI scan and two migraine-related sick days.

Attendance Review and Dismissal

On 14 March 2023, Mullinger attended a formal attendance review meeting with Ms Davies and the prison’s governor, Mr Ormerod, and was accompanied by his union representative. The meeting focused on his potential return to full duties and the implications if this proved unfeasible.

During the meeting, Ormerod expressed concerns about Mullinger’s ability to carry prison keys and work independently, and referenced his overall sickness record. Although vacancies in Band 3 administrative roles were mentioned, no substantive discussion took place regarding their suitability or Mullinger’s capacity to fulfil them.

Following a brief adjournment to consult HR, Ormerod informed Mullinger that his employment would be terminated due to the prolonged nature of his restricted duties and his absence record. Mullinger and his rep replied to say there were measures he could take to prevent a seizure from coming on, as reflected in the OH report, and the absences issues raised were mainly caused by the issue with his foot which was now resolved.

A formal dismissal letter was issued the same day, citing concerns about lone working, key-carrying responsibilities, and past health-related absences.

Mullinger appealed the decision, which was rejected in a short appeal hearing.

Tribunal Findings

The tribunal concluded that the MoJ had failed in its duty to make reasonable adjustments under the Equality Act 2010. It found that reassignment to an administrative role would have been a viable alternative to dismissal and that the employer had not adequately explored or consulted on such options.

Judge Aspden noted that Mullinger was receiving appropriate medication and was expected to become seizure-free in due course. The tribunal criticised the MoJ for not considering medical suspension or extended sick leave while awaiting further clarity on his condition.

Mullinger’s claims for disability discrimination, failure to make reasonable adjustments, and unfair dismissal were upheld. The compensation awarded of £444,960 included loss of earnings, pension contributions, interest, and a basic award.

Key Takeaways:

• Duty to make reasonable adjustments: Employers must actively explore and implement reasonable adjustments for employees with long term health conditions which could be protected under the Equality Act — including redeployment to suitable roles — before considering dismissal.
• Health conditions which fluctuate could still be protected: Under the Equality Act 2010, a person is disabled if they have a physical or mental impairment that has a "substantial" and "long-term" negative effect on their ability to carry out normal, day-to-day activities. This can includes conditions which can have fluctuating or recurring effects, such as Epilepsy.
• OH Reports must be carefully considered: Occupational health recommendations carry weight. If they suggest a path to recovery or adjustment, employers must show they’ve considered carefully and followed through where reasonably practicable. They must consider any likely recovery period or prognosis, and the employer should wait for this confirmation before considering dismissal.
• Hold thorough consultations: A decision made without meaningful dialogue or exploration of alternatives risks being deemed procedurally unfair

 

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