Employment Law Cases

Brightman v TIAA Ltd

Up to date medical evidence is vital when defending the fairness of an ill-health capability dismissal, although only if it’s obtained before a dismissal.

Background

Mrs Brightman had a complicated medical history, with various long-term health conditions. These had led to a number of prolonged periods of ill-health absence but her employer had always accommodated these by asking colleagues to cover for her and not giving her time-pressured work. She qualified as ‘disabled’ for the purposes of the Equality Act 2010.

A report from her GP in 2015 said she was fit for her role but that her worsening conditions would likely lead to longer periods of sick leave. It also stated that there was ‘no reason why she could not be able to manage her work as she had done for many years’. In 2016 she continued to be absent and was referred to occupational health (OH). Its report stated that further absences would continue to be likely and ‘the only recommendation was further flexibility for tolerating sickness absence’. At the time of her dismissal in January 2017 Mrs Brightman had been working for three months without absence. Her employer however decided her absence levels were unlikely to improve and dismissed her for reasons of capability. She claimed unfair dismissal, disability discrimination and a failure to make reasonable adjustments. At the hearing the employer produced evidence that was not available at the time of the dismissal which indicated Mrs Brightman ‘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. She appealed.

EAT decision

The appeal was allowed and remitted to be heard afresh by another tribunal.

The tribunal’s task was to decide whether it was reasonable for the employer to dismiss based on the information available to it at the time of the dismissal, or whether it needed to carry out more investigation of the employee’s medical condition. In this case the tribunal doubted the adequacy of the medical information but had ‘filled the gap’ with information about how Mrs Brightman’s medical condition had in fact progressed after the dismissal. That evidence was irrelevant to whether the employer had acted fairly in deciding to dismiss in the first place.

A similar mindset from the tribunal rendered its decision on the reasonable adjustments claim unsound. Although the tribunal found that it would not have been reasonable for the employer to wait another year for Mrs Brightman’s health to improve, that conclusion was also based on the medical evidence about what had happened after the event. The tribunal should have considered the reasonable adjustments claim based on the medical evidence available at the time.

Other factors which led to the EAT allowing the appeal included:

• at the time of dismissal Mrs Brightman was back at work and hadn’t been off sick for almost three months
• the GP and OH reports were six and 12 months old respectively – and the OH report assessed fitness to work, not prognosis
• Mrs Brightman had a new medical team in place shortly before the dismissal and was optimistic that some of the issues resulting in absence would improve
• while stating that they couldn’t support the unpredictable nature of Mrs Brightman’s absence, the employer had in fact done so for several years and it hadn’t submitted any evidence backing up its claim that continuing to employ her would cause financial difficulties

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/0318_19_0207.html

Comment

Where a capability dismissal is concerned, it’s vital that the employer not only has current medical evidence available to it at the point of deciding to dismiss but also that the content of that evidence focuses on the relevant issues. This is particularly important if the employee’s attendance has recently improved.

Our Knowledge section also contains guidance on handling short-term absence, long-term absence and poor performance.