Managing an employee who has persistent short or medium term ill-health absence is difficult for an employer. Dismissing an employee whose attendance is unlikely to improve may be fair, but this will often depend on medical evidence about the employee’s prognosis. A recent EAT decision, Brightman v TIAA Ltd, confirms how important up to date medical evidence is to defending the fairness of an ill-health capability dismissal - although only if the evidence is obtained before the dismissal.
What happened
Mrs Brightman had severe asthma and other conditions that meant she was disabled under the Equality Act. She had significant absences from work, despite adjustments to her working hours and type of work. These absences increased over time to around 35% from 2015 onwards. Her employer obtained medical evidence about her condition in early and mid-2016, decided that her absence levels were unlikely to improve and dismissed her for capability in early 2017. Mrs Brightman claimed that the dismissal was unfair, disability discrimination and a failure to make reasonable adjustments.
The employment tribunal dismissed her claims. It accepted that the dismissal was within the range of reasonable responses, relying on medical evidence that showed that Mrs Brightman’s health did not in fact improve until 2018. On that basis the employer could not have been expected to wait longer before taking the decision to dismiss. Mrs Brightman appealed.
Why the EAT overturned the decision
There were several significant features of Mrs Brightman’s case:
- She was at work at the date of dismissal and had not been absent because of illness for nearly three months;
- The medical evidence the employer relied on when it decided to dismiss was between six and twelve months old;
- The employer’s occupational health report was an assessment of fitness to work, not an assessment of Mrs Brightman’s medical conditions or prognosis; and
- She had a new medical team in place shortly before the dismissal and was optimistic that some of the issues resulting in absence (such as an infected intravenous line) would improve.
The tribunal had to decide whether it was reasonable for the employer to dismiss on the basis of 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 had doubts about 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.
The same mistake made the tribunal’s approach to 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 on the basis of the medical evidence available at the time.
The unfair dismissal and disability discrimination claims were sent back to a different employment tribunal for rehearing.
Next steps
Employers managing a capability situation should assess the adequacy of medical evidence about likely future absences before deciding to dismiss. This is particularly important if the employee’s attendance has recently improved or if there is new information – such as the change of medical team in this case – that may make further investigation advisable. “After the event” medical evidence will not be relevant to whether the dismissal was fair, although could be relevant to any compensation awarded to the employee.
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