Care assistant's disability discrimination claim dismissed: absence policy applied fairly
A care assistant with a heart condition and asthma lost her claim that Hampshire County Council discriminated against her when dismissing her for sickness absence. The tribunal found the council's capability process was not because of her disability.
1 min read · Last updated 18 May 2026
Case details
- #disability-discrimination
- #associative-discrimination
- #short-term-sickness-absence
- #stage-3-capability-process
- #refusal-to-change-hours
Key facts
- The claimant was employed as a care assistant from November 2015 until dismissal on 2 December 2019.
- The claimant had a heart condition and asthma, and her daughter had autistic spectrum disorder.
- The claimant had multiple short-term absences and was subject to the respondent's sickness absence policy, progressing through Stage 1 and Stage 2 warnings.
- The claimant was dismissed on grounds of medical capability following a Stage 3 meeting.
- The claimant's requests to change her working hours were refused.
- The tribunal found that the dismissal was due to absence levels, not disability, and that the refusal to change hours was not because of her daughter's disability.
Timeline
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Employment started
Claimant began working for the respondent as a care assistant at Emsworth House care home.
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Stage 1 warning issued
Claimant received a Stage 1 formal warning for sickness absence, requiring no more than one shift's absence in three months.
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Further absence review
Meeting with manager Ms Jacobs due to absence from 24 August to 6 September 2017.
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Second Stage 1 warning
Claimant received another Stage 1 warning, valid until 10 July 2019, with a target of no more than 6 shifts over 2 episodes.
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Stage 2 meeting
Stage 2 meeting held; claimant was given a final written warning with a target of no more than 6 shifts or 2 occasions in 12 months.
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Meeting with Ms Cherian
Claimant met with Ms Cherian; discussed rota and hours; claimant mentioned her daughter's ill health.
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Stage 3 meeting and dismissal
Stage 3 meeting held; decision maker Gill Nother dismissed the claimant on grounds of medical capability.
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Claim presented
Claimant presented claims of unfair dismissal, unpaid holiday pay, disability discrimination, and associative disability discrimination.
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Preliminary hearing (time limits)
Employment Judge Cadney dismissed unfair dismissal and holiday pay claims as out of time, but extended time for discrimination claims.
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Final hearing
Full merits hearing before Employment Judge Dawson and panel; claimant represented herself.
The legal issue
The tribunal had to decide whether the claimant's dismissal and the refusal to change her working hours amounted to direct disability discrimination or associative disability discrimination because of her own disability or her daughter's disability.
The outcome
The tribunal dismissed the claims of direct disability discrimination and associative disability discrimination.
The key reason was that the claimant's dismissal was due to her high sickness absence levels under the council's capability policy, not because of her disability. The refusal to change her hours was also not linked to her daughter's disability.
No compensation was awarded as the claims failed.
Lessons & takeaways
- Employers can dismiss for sickness absence under a capability policy if they apply it consistently and do not treat the employee less favourably because of disability.
- A refusal to change working hours to care for a disabled relative may not be associative discrimination if the employer's reason is unrelated to the relative's disability.
- Claimants must show that the reason for the treatment was the protected characteristic itself, not just that they had a disability or caring responsibilities.
What this case shows in practice
This case illustrates the limits of disability discrimination law when an employer follows a clear sickness absence policy. The care assistant had a heart condition and asthma, and her daughter had autism. She had multiple short-term absences and was dismissed after reaching Stage 3 of the council's capability process. She argued that the dismissal and refusal to change her hours were because of her own disability or her daughter's disability.
The tribunal disagreed. It found that the council's decisions were based on her absence record, not on her disabilities. The capability process was triggered by her absence levels, which were high even when compared to colleagues without disabilities. The refusal to change her hours was due to operational needs, not because of her daughter's condition.
What the employer did right
Hampshire County Council had a structured sickness absence policy with staged warnings and clear targets. The decision-maker considered the claimant's medical evidence but concluded that her absence levels were unsustainable. The tribunal noted that the council had engaged with the claimant about her health and had offered support. This consistent application of policy helped the council defend the claim.
Why this matters for similar claims
For employees with disabilities or caring responsibilities, this case is a reminder that discrimination claims require a direct link between the treatment and the protected characteristic. Simply having a disability or caring for a disabled relative is not enough. The employer must have treated the employee less favourably because of that characteristic. Here, the tribunal found no such link. The case also shows that employers can rely on capability procedures if they are applied fairly and consistently, even when the employee has a disability.
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