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Employee with severe asthma wins appeal against unfair dismissal

Makbool Javaid, Partner - Simons Muirhead & Burton

In Brightman v TIAA Ltd 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%. Her employer obtained medical evidence about her condition and decided that her absence levels were unlikely to improve and dismissed her for capability. 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. On that basis the employer could not have been expected to wait longer before taking the decision to dismiss. Mrs Brightman appealed.

The EAT allowed the appeal in relation to discrimination because of something arising in consequence of disability and a failure to make reasonable adjustments. 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 unfair dismissal and disability discrimination claims were sent back to a different employment tribunal for rehearing.

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