EAT Disability Discrimination – UNFAIR DISMISSAL – Reasonableness of dismissal
The claimant had been dismissed for redundancy. She was one of three disabled employees in the pool of six candidates from which one had to be selected for redundancy. The criteria used to determine who was selected, was their sickness absence record. The employers decided that account would be taken of disability related absences but only to the extent of 50% of them. The claimant had the highest level of days absent – and spells of absence – for non-disability related absence.
The Employment Tribunal rejected her claims of disability discrimination but upheld a claim for unfair dismissal on the basis that the employers had acted incorrectly and unfairly in using a particular formula to give effect to the 50% discount. It held that the formula proposed by the claimant was the correct one. It later awarded andpound;10,000+ compensation after applying an 80% Polkey discount.
The claimant appealed from the dismissal of her Disability Discrimination claims and against the Polkey reduction.
APPEALS DISMISSED
On all three claims (direct discrimination, disability-related discrimination and indirect discrimination) the Tribunal had reached decisions open to them on the facts and had not erred in law. On the Polkey point, the Tribunal had given adequate reasons and had not reached a perverse conclusion.
The employer cross-appealed the unfair dismissal finding on the basis that the Tribunal had wrongly substituted its view, as to the correct formula for calculation, for that of the employer.
CROSS-APPEAL ALLOWED
The Tribunal had erred precisely as contended. The formula adopted by the employer was rational and had been adopted for explicitly stated reasons and after consideration of the alternative formula. It was within the range that might have been adopted by a reasonable employer.
Rec Luba QC
[2014] UKEAT 0314 – 13 – 2008
Bailii
England and Wales
Employment, Discrimination
Updated: 21 December 2021; Ref: scu.537097
