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Dismissal, disability discrimination and ill-health at the EAT

What factors should an employer take into account before dismissing for ill health? David Leslie, Leeds Employment Team, considers a recent Employment Appeal Tribunal case.

In Monmouthshire County Council v Harris [UKEAT/0332/14/DA], the Employment Appeals Tribunal overturned the Employment Tribunal’s judgment that Mrs Harris had been unfairly dismissed and that her dismissal was disability discrimination.

Reasonable adjustments

Mrs Harris suffered from a disability arising from four chronic conditions. The council allowed her to work from home for some of the week as a reasonable adjustment. However, when her line manager changed, that arrangement was withdrawn. She went off sick for almost six months before being dismissed.

Mrs Harris brought claims for unfair dismissal, failure to make reasonable adjustments, and discrimination arising from disability.

Unfair dismissal

The Employment Tribunal found that her dismissal was unfair because of procedural defects and discriminatory: it was for her absence that arose from her disability and could not be justified. In particular, the ET found that the council had not given sufficient consideration to its failure to make reasonable adjustments causing her absence before dismissing her. The failure to make reasonable adjustments claim arising from the withdrawal of home-working was presented out of time and there were no reasonable adjustments that could have been made at dismissal. The tribunal awarded £238,216.37 in compensation. The council appealed.

Employment Appeal Tribunal

The Employment Appeals Tribunal identified from previous case law that the first question was whether the employer can be expected to wait longer. It must then go on to consider what the employee says about their absence and what the medical evidence says.

The EAT referred to McAdie v Royal Bank of Scotland [2008] ICR 1087 CA, which found that an employer who causes an employee to be absent is not precluded from fairly dismissing the employee.

Proportionate means of achieving a legitimate aim

It also looked at the decision in Royal Liverpool Children’s NHS Trust v Dunsby [2006] IRLR 351 EAT, which said that disability related absences can be taken into account when dismissing for incapacity, if that can be justified as a proportionate means of achieving a legitimate aim.

The EAT found that the ET had erred by focusing too much on the employer’s earlier failure to make reasonable adjustments when there was no continuing obligation to make those adjustments at dismissal. The ET had not properly considered whether dismissal was proportionate in the circumstances.

In terms of the fairness of the dismissal, the ET was entitled to consider the previous failure to make reasonable adjustments but it should also have considered all the other circumstances of the decision to dismiss. The judgment did not demonstrate that it had done so.

Points to note for employers

This case should lead employers to bear in mind the following when deciding whether to dismiss:

  • Have all possible reasonable adjustments been considered to facilitate the employee’s return to work?
  • Has the employer given sufficient warning to the employee about the risk of dismissal if the absence continues?
  • Has there been genuine consultation with the employee about why they are off work and what might be done to effect a return to work?
  • Has the employer waited long enough to find out whether or not the employee might return to work before dismissing, in particular, taking into account whether the absence might have been caused by a failing on the employer’s part?

The employer who can confidently answer ‘yes’ to the above questions can move on to consider whether or not to dismiss. However, if there is any doubt, the employer should be arranging further meetings with the employee and considering getting up-to-date medical evidence before holding a dismissal meeting.

ACAS Early Conciliation

The case also serves as a reminder to employees to begin their claims by starting ACAS Early Conciliation no later than three months less one day from the date the employer has refused an adjustment, or it seemed clear that they were not going to make the adjustment, if they had not expressly communicated that decision.

Each situation must be considered on its own facts and specialist legal advice should be considered from an early stage. To discuss the issues in this case and how they might affect you or your business, contact David Leslie by emailing dleslie@lyonsdavidson.co.uk or on 0113 368 7804.

Posted on Nov 3rd, 2015 by Lyons Davidson