EAT Unfair Dismissal : Reasonableness of Dismissal – DISABILITY DISCRIMINATION: Reasonable Adjustments; Exclusions /Jurisdictions
The Claimant suffered from a long standing chronic degenerative condition of his spine, particularly affecting his neck. After being absent from work for some ten months in 2011, he sought ill health retirement, which was recommended by doctors on the basis of his description to them of the symptoms from which he suffered. Within two weeks of their report, holding that the Claimant was permanently unfit for any work, he was observed displaying a range of movements without any apparent difficulty or discomfort, which appeared inconsistent to those he had been describing to those doctors, who now revised their opinion such that they held him fit for some work, albeit restricted by his underlying condition. The employer disciplined him for exaggerating his condition to the doctors, and absenting himself from work when he was fit to do some. A Tribunal held that the employer genuinely believed that he was culpable, after a reasonable investigation, and that if it had reasonable grounds for its belief dismissal would fall within the range of reasonable responses. It held however that the grounds were not reasonable. An appeal against that conclusion was allowed, on the basis that the Tribunal had taken the wrong approach – it had not asked what the grounds were upon which the employer acted, but rather determined for itself what it made of the medical evidence, and substituted its own view as to whether the Claimant had exaggerated; it made two factual errors which separately fed into its analysis; and took account of two matters which on analysis were of no logical relevance. It thought perversely that the change of view by the Doctors was ‘not an entirely different prognosis’.
Separately, the Tribunal decided that the employer had been under a duty to make reasonable adjustments in the light of the Claimant’s neck trouble, but had chosen not to do so because it thought the Claimant might be absent from work again. Accordingly, there was no proper basis for thinking that its omission to act at any stage thereafter was part of a continuing act, such that time had not expired. By deciding not to implement the adjustment when it might have done the employer was refusing to comply with its duty, such that time started running at that point. Accordingly, the claim was brought out of time unless extended. The Tribunal had not as it should have done determined if it was just and equitable to extend that time. The appeal was allowed, and the questions whether there were reasonable grounds for what had been found to be the employer’s genuine belief, whether the dismissal was wrongful, and whether time should be extended for bringing a claim in respect of the employer’s breach of its duty to make a reasonable adjustment were remitted to a fresh Tribunal.
Langstaff P J
[2015] UKEAT 0393 – 14 – 2503
Bailii
England and Wales
Employment
Updated: 29 December 2021; Ref: scu.544862
