The Claimant had been off work for nearly a year and was dismissed for capability reasons. He brought various claims against the Respondent including discriminatory unfair dismissal. The ET found that the Claimant was unfairly dismissed. It found that the reason for dismissal was capability and that that decision was made on the basis of the Claimant being absent from the workplace for 330 days with no foreseeable return to work. The ET also specifically rejected the contention of the Respondents that the dismissal was, in reality, because of the Claimant's unwillingness to engage in resolution of workplace issues and because trust had irreparably broken down. As regards the claim under Section 15 of the Equality Act, in respect of the contention that the dismissal itself was an act of discrimination, the ET noted that dismissal was unfavourable treatment and that, in this case, the dismissal was for absence and that the absence was something that arose in consequence of the Claimant's disability. The Respondent appealed.

The EAT dismissed the appeal. Reading the ET judgment and reasons as a whole and fairly, without minutely dissecting the individual sentences, the ET carefully and correctly identified the relevant law in respect of the unfair dismissal claim and the claim contrary to s15 of the Equality Act. It was also significant that the ET had found that the reason for dismissal was capability because there was not "a foreseeable return to work" and yet, in fact, the evidence of their own Occupational Health advisers was that there was "a foreseeable return to work".  The ET therefore concluded that the Respondent had failed to make necessary further enquiries about when that event could take place or seek to obtain information about how long the ET proceedings would have lasted. Had the employer chosen to make those enquiries and then considered that information in the context of all other available information, it may have been possible for it to dismiss the Claimant fairly at that stage. The employer, however, did not seek that important information out.