Thread by @JasonBraier

1/ Brightman v TIAA Ltd - EAT holds ET erred in considering medical evidence about B's condition post-dismissal when assessing the fairness of a capability dismissal & whether there'd been a failure to make reasonable adjustments. #ukemplaw

bailii.org/uk/cases/UKEAT…

2/ B was an auditor with brittle asthma, a blood clotting problem & a slipped disc. These caused B to be absent from work. The absences grew in length & regularity. She was referred to OH & examined by a doctor who didn't have supplementary notes she'd provided.

3/ As a result, B didn't permit the release of the Dr's report until he'd seen her notes. This took about 4 months - the notes didn't change the Dr's opinion. The report said she was fit for work but would continue to require sickness absences of like magnitude to the last year.

4/ B was invited to a meeting at which she was told the business couldn't continue to support her recent levels of absence. B explained difficulties with her medical team & that she'd now got a good team in place & felt her absences would improve.

5/ A further meeting was arranged 3 months later. B wasn't warned she could be dismissed. She hadn't been absent since the last meeting even though she had to attend hospital daily. After an adjournment she was dismissed on the basis that her absence level wasn't acceptable.

6/ B appealed, explaining the positive steps with her asthma treatment. The appeal was dismissed, with the employer finding B's positive view of her condition contradicted that of her GP & the OH doctor & that recent improvement didn't make the decision unreasonable.

7/ The EAT noted B hadn't had a day off for nearly 3 months by the time of her dismissal & nearly 4 by the time of her appeal. By that point the GP report was over a year old & OH report over 6 months old. Also, the OH report wasn't an opinion on B's condition.

8/ At the liability trial, the ET allowed the employer to submit medical evidence postdating dismissal. In doing so, the ET noted (with surprise) that B had opted to delay obtaining her own independent medical evidence until after liability had been determined.

9/ B's claims had been of unfair dismissal, direct disability discrimination, s.15 discrimination & failure to make reasonable adjustments. TIAA pleaded justification to s.15 without any substantive pleading, though in w/s focused on inconvenience of unpredictable absences.

10/ All claims were dismissed. B appealed all bar direct discrimination.

11/ The EAT looked 1st at the post-dismissal medical evidence, noting this can only be relevant if a retrospective determination of the true medical situation at the time the dismissal decision was taken. It's irrelevant if looking at the medical position as it was post-decision.

12/ Moreover, when looking at the fairness of the dismissal, evidence obtained post-dismissal couldn't be relevant to the determination made by the decision-maker. It may be relevant to remedy but not to liability.

13/ The EAT considered that the fact that B hadn't been absent for 3 months, that the GP & OH reports were old & B's confidence in the improvement under her new medical team might have given the ET pause for thought on fairness. However, the appeal would be dismissed absent error

14/ The EAT found that error in the ET's reliance on the post-dismissal evidence to fill the gap left by the out of date medical evidence that was before the decision-maker.

15/ The EAT then considered the relevance of post-dismissal medical evidence to the reasonable adjustments claim. It held it irrelevant if relating to changes to health after the decision was taken, but I think there's a "not" missing in a crucial para (or else I've misread it).

16/ The EAT held the ET had fallen into that error, and should have limited itself to the position at the time the adjustments could have been made.

17/ Finally, on the justification defence to the s.15 claim, the EAT held the ET had erred in failing to engage with the claimant's challenge to the justification put forward & that the ET failed to properly scrutinise the defence put forward by the employer.