Your employer cannot use medical evidence from after your dismissal to justify it.

The situation

An employee had a long history of health conditions that led to repeated periods of sickness absence over several years. Her employer had previously managed this by having colleagues cover her work and keeping her away from time-pressured tasks, and she was recognised as disabled under the Equality Act 2010The main piece of legislation protecting employees from discrimination at work. It covers nine protected characteristics including age, disability, sex, race, and religion, and makes it unlawful for a.... A GP report in 2015 said she was fit for her role, though her conditions were likely to cause further absence, and an occupational healthAn independent medical service that employers use to assess how a health condition is affecting your ability to work. A referral to occupational health is not a step toward dismissal, but the report p... report the following year recommended that the employer continue to tolerate her sickness absence. By January 2017, when she was dismissed for capabilityOne of the potentially fair reasons an employer can use to dismiss someone, covering situations where you are unable to do your job to the required standard, including through ill health. A fair capab..., she had worked for three monthsThe standard time limit for bringing most employment tribunal claims, running from the date of the act complained of. Because the limit is three months less one day, you should not wait until what fee... without any absence, but her employer decided her attendance was unlikely to improve. She brought claims for unfair dismissalA legal claim you can bring if your employer dismissed you without a fair reason or without following a fair process. You normally need two years of continuous employment to qualify, though some dismi..., disability discrimination, discrimination arising from disabilityA type of disability discrimination under section 15 of the Equality Act 2010, where you're treated unfavourably because of something connected to your disability, like time off or how a condition aff..., and failure to make reasonable adjustments.

What the tribunal found

At the original hearing, the employer introduced medical evidence that did not exist when the dismissal decision was made. This evidence showed the employee's health had not actually improved until a year later, in 2018. Although the tribunal had doubts about how complete the medical picture was at the time of dismissal, it used this later evidence to fill that gap and concluded the employer could not have been expected to wait any longer. On that basis it rejected her claims for discrimination arising from disability, under section 15 of the Equality Act 2010, and failure to make reasonable adjustments.

The Employment Appeal Tribunal held this was the wrong approach. Both the fairness of the dismissal and the reasonableness of any adjustments have to be measured against what the employer knew at the time, not against how the person's health happened to develop later. The tribunal's findings on those two claims were overturned and the case was sent back to a different tribunal to be reheard.