When dealing with an ill-health situation it is often difficult for an employer to know whether it should wait a little longer before taking a decision to dismiss. In Shah v TIAA Ltd the EAT agreed that the employer had done enough for a capability dismissal to be fair and justified, even though the employee was still able to carry out some duties.

Ms Shah was employed as a senior audit manager, travelling to client sites to audit and report on their performance. She was expected to work 150 chargeable days each year to cover the cost of her salary. As a result of a back condition, Ms Shah found travelling to client sites increasingly difficult and her productivity suffered, falling below 50% of her target. The employer conducted a number of discussions with her about possible adjustments to her role and obtained a medical report, which indicated that her back condition was likely to be on-going. Her own evidence was that she could not travel to any of the client sites where work was available and argued that it would be a reasonable adjustment to allow her to work from home and to reduce her target chargeable hours. Eventually the employer decided that home-working was not feasible in a client facing role and that it had no suitable vacancies it could offer her. It dismissed her on capability grounds and she claimed unfair dismissal and disability discrimination.

The EAT upheld the tribunal's dismissal of her claims. The decision to dismiss Ms Shah was justified and fair. The medical prognosis was at best neutral and the employee's own evidence was that her condition was progressive. In the circumstances there was no need to obtain a further medical report before taking the decision to dismiss. Further, Ms Shah had indicated that she could not travel to any of the sites where work was available and had not said that she thought this position would change. Although she was capable of working from home, there was no authority for the proposition that it could never be proportionate to dismiss a disabled employee who was not actually off sick.

Although the employer had not offered the employee part time working, it had still complied with its duty to make reasonable adjustments. The employee and her representative had argued that her chargeable target hours should be reduced, but implicitly that this should be with no reduction in pay. She had never suggested that she would be willing to reduce her hours if that involved a corresponding reduction in pay. Although the onus was on the employer to make adjustments, the fact that an employee has not thought to suggest a particular adjustment may, on the facts, be relevant to whether it is in fact reasonable. In circumstances where the claimant was only able to perform about 20% of her work, it was difficult to regard an adjustment that would have cut her pay by 80% as reasonable for the employer to make.

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