The dismissal of bus driver Ms C Hollingshead by London General Transport Services Ltd after she was unable to drive following a shoulder injury has been held to be fair by a London employment tribunal.
The tribunal also dismissed claims by Ms Hollingshead of less favourable treatment because of disability; discrimination due to something arising from disability; failure to make reasonable adjustments; and harassment related to disability.
It also dismissed a claim by the company that she should pay a portion of its costs.
Ms Hollingshead worked for the company as a bus driver from 1 July 2017 until her dismissal on 16 September 2022. There was no dispute about her injury and medical history. She had an injury to her left shoulder in 2020 and was signed off from work from 27 April to 24 July 2020. She then worked with adjusted duties until 13 August 2020. She did not have any further medical attention on her left shoulder. On 2 May 2022, she began experiencing problems with her right shoulder. She attended accident and emergency with the complaint. After that, she went to her GP and was diagnosed with impingement and tendonitis in her right shoulder. She was signed off work with the condition until 20 May 2022.
Ms Hollingshead contended that the dismissal was premature because she had an upcoming MRI scan which might give a better idea of treatment and prognosis. That formed the basis of her written appeal against her dismissal. The company considered that the scan was unlikely to yield a reasonable return to work, or even any clarity, given the extended period of absence without any discernible improvement in her condition.
In the tribunal’s view, the company had given Ms Hollingshead multiple opportunities to show progress in her recovery and to get a sense of prognosis going forward. It accepted there were difficulties in obtaining and waiting for appointments, but she admitted that in that time her recovery was inconsistent and limited, and that she had no idea when she would be able to return to work.
It was also relevant that Ms Hollingshead was getting signed off work entirely by her GP, and getting signed off for increasingly lengthier periods of time. It would be reasonable for the company to perceive that her condition was becoming worse or less clear rather than better. The tribunal accepted that these considerations were taking place against a backdrop of a difficult commercial environment where the company needed to have its bus drivers in buses and driving as much as possible. Consequently, it was not unreasonable for the company to have dismissed her when it did.
By the time of her appeal her condition had worsened in that she was no longer driving at all outside of work, and she had said that she could not imagine driving a bus. Given her narrow appeal, which was that not dismissing her yet would give her the chance to show improvement and get a return date, it was within the range of reasonable responses to dismiss the appeal.
