The Claimant was dismissed for capability reasons due to ill health. Her appeal against the dismissal was dismised, the Respondnet saying that sufficient consideration had been given to the Claimant's view that her condition would improve and that her view was measured against medical and other evidence which indicated this was unlikely. He found an Occupational Health report was unambiguous regarding the Claimant's future attendance level and noted the Claimant had not produced further medical evidence to support her view that her attendance would improve. The Claimant claimed unfair dismissal at the ET. The hearing addressed liability only (excluding, unusually, consideration of any Polkey issues). This exclusion was a consequence of an application by the Claimant's Representative (opposed by the Respondent's Representative) in order to postpone the cost of medical evidence until remedy. At the final hearing the Respondent sought to introduce a bundle of additional medical evidence, including evidence about the medical condition of the Claimant that post-dated her dismissal. The Tribunal permitted the application for the evidence to be introduced, despite the objection of the Claimant. The ET found that the reason for dismissal was the Claimant's high level of absence in 2015 and 2016 and the Respondent's belief this was likely to continue or become worse ie capability. The Claimant 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. The ET had impermissibly had regard to what had happened to the Claimant's health in the period after her dismissal and the rejection of her appeal rather than limiting itself to what the position was at the time the adjustments could have been made (which can be no later than the decision to dismiss, or the rejection of the appeal). In respect of the claim of discrimination because of something arising in consequence of disability the ET failed to consider the Claimant's challenge to the "justification" defence. In so doing the ET erred in law.