An employment tribunal has dismissed a claim of disability discrimination brought by Christopher Pugh against Swindon Borough Council. Mr Pugh, who had worked for the council’s customer services department since February 2008, was dismissed in May 2023 following extensive sickness absence.
Mr Pugh’s role involved handling a range of public queries at Wat Tyler House, both face-to-face and over the telephone. The council’s dismissal letter, cited in the tribunal’s decision, noted that Mr Pugh had been absent from work for 125 days out of a possible 260 working days in the 12 months prior to his dismissal, and 130 days in the year before that.
He appealed the dismissal, arguing that he would have been able to provide a reliable service if he had been permitted to work from home full-time. During the pandemic in 2020 and 2021, he had worked from home, and in 2023 the council agreed he could work from home on Mondays and Fridays, with office attendance required on the remaining days.
However, the council argued that its IT systems were not fully equipped to support customer service operations from home at the time – although later improvements had resolved those issues. Mr Pugh’s absences were primarily due to the Epstein Barr Virus, which began affecting him in 2020. His condition continued to cause sporadic absences into 2023, ultimately leading to his dismissal.
Operational needs and employee wellbeing
The tribunal acknowledged that Mr Pugh faced a significant disadvantage as his dismissal was due to sickness absence related to his disability. However, it concluded that the council had to maintain a critical public service, particularly for elderly, disabled, homeless and vulnerable clients.
The key question for the tribunal was whether Swindon Borough Council could have made reasonable adjustments that might have reduced Mr Pugh’s sickness absence and allowed him to continue in employment.
The judgment found that allowing Mr Pugh to work from home full-time would not have resolved the situation. It concluded that while remote working might have slightly improved his symptoms, the evidence suggested his sickness absence would still have remained high – noting that Mr Pugh had a near 30 percent absence rate even when working from home.
Dismissal “not disability discrimination”
In its findings, the tribunal expressed sympathy for Mr Pugh, acknowledging his ongoing health issues and the distress caused by his dismissal. However, it determined that Swindon Borough Council’s actions did not amount to disability discrimination.
The judgment concluded, “Our finding on the balance of probabilities is that the adjustment of working from home five days a week would not have alleviated the disadvantage. The claimant did not have a good sickness record even before contracting EBV. Any improvement would be from a very low base. Our findings mean that his treatment was not disability discrimination.”