Dismissal for ‘lack of capability’ masked wider issues over workplace software and occupational health failings

An employee with depression and anxiety who was fired over his ‘lack of capability’ was unfairly dismissed and discriminated against because of his disability, an employment tribunal has ruled.

Allowing Mr Osifo’s claims, the Manchester tribunal concluded that British Gas had failed to resolve software issues he had experienced at work, and encouraged him to return to work by erroneously claiming they had been fixed. Judge Holmes added that the company’s occupational health (OH) assessment was conducted without Osifo’s medical records. A remedy hearing will follow.

The tribunal heard that Osifo worked as a customer service adviser in British Gas’s Manchester call centre from 6 April 2009 until his dismissal on 5 August 2016. He already suffered from ongoing stress and the hearing conditions tinnitus and hyperacusis.

Osifo said he dealt with customers’ queries over the telephone and used a computer application called Agent Workbench (AWB) during calls. He experienced a large number of faults with the programme in 2013 and 2014, which he said negatively affected his performance.

When Osifo experienced further faults on 24 August 2015, he felt he could no longer cope. He informed his line manager, Mr Prendiville, that he wanted to go home, and was issued with a sick note by his GP on 25 August because of stress hypertension, remaining absent until 18 January 2016.

During a subsequent telephone consultation with the OH department, British Gas was advised that it could do more to help Osifo through management, and reported that if he were to return to work before AWB was fixed, his mental health would likely deteriorate.

During Osifo’s absence, the company investigated the AWB issues. Prendiville was incorrectly informed  that Osifo’s individual AWB profile had been rebuilt to eradicate or reduce the problems he had, and he passed this information on to Osifo.

When Osifo returned on a four-week phased basis in January 2016, the AWB account had not been rebuilt. He continued working until he experienced further failures on 15 February 2016, and his tinnitus worsened, causing him to call the NHS 111 service for advice. He went home because of an inability to cope, informing Prendiville verbally and by email.

After OH recommended that Osifo return in an alternative role that did not require using AWB, Osifo lodged a grievance in March, requesting redeployment into a role that did not require its use. He remained on sick leave and that month his sick pay was halved. He was sent links to internal job vacancies.

At a grievance meeting on 6 April, Osifo was asked if he would return to his role if AWB was fixed. He again requested another role, but was told the next step would be under the capability procedure. He was told that his absences were above the “level for which the business can sustain” and had “painted himself into a corner” by insisting he be guaranteed that there would be no system faults in any role.

His team manager dismissed him on capability grounds, citing his absence for 97 days, and that he had not applied for other roles. Osifo had seven days to appeal, which he did by letter on 17 August. The company responded that he was out of time.

James Medhurst, associate at law firm Fieldfisher, told People Management that British Gas “rushed” many steps in the case, appearing “very keen” to dismiss. The company progressed without enough information from Osifo’s GP to gauge a full picture of his condition, leading it to “dismiss him based on presumption rather than evidence”.

The company decided that Osifo was “not keen to continue working for them by assumption”, and did not go far enough to offer him sufficient alternative roles, Medhurst added.  

If an employer believes an employee is not serious about returning to work, it cannot assume this without sufficient evidence, he said, adding that, should an organisation want to dismiss someone for that reason, it has to gather evidence to prove that – a strong suspicion is not enough to show lack of capability or malingering.

"He was denied an appeal because he submitted it outside the employer's seven-working day time limit, which the tribunal found was unreasonably applied. In ill-health absence cases, if a tribunal finds that an employer has dismissed a disabled employee unfairly, it is almost inevitable that the dismissal will also be discriminatory," said Guy Bredenkamp, an employment partner at DAC Beachcroft.

The tribunal found it troubling that the company thought Osifo was not doing his best to return to work because, in its view, the employee should have been managed on the basis that he was not medically able to return, he added.

Carol Frost, HR director at British Gas, said: “We were disappointed with the ruling. This is a complicated case. We always try to help employees find redeployment opportunities. We take on board the judge's comments that we could have done more to find an alternative role for Osifo.”

Related articles

Retail worker wins tribunal after mental illness was overlooked

Case is a reminder for employers to account for medical conditions, say legal experts

Nearly half of young people in part-time jobs suffer mental health problems

Employers urged to conduct wellbeing audits to better understand the impact of insecure contracts