Unfair Dismissal: Reasonableness of Dismissal – DISABILITY DISCRIMINATION – Reasonable adjustments
Unfair Dismissal – fairness of the decision to dismiss
In circumstances where the advice available to the employer had materially changed between the taking of the decision to dismiss and the dismissal itself, a question arose as to whether this impacted upon the fairness of the dismissal. This was an issue raised by the Claimant’s case before the Employment Tribunal but the reasons provided did not demonstrate engagement with it. Appeal against the dismissal of the unfair dismissal case allowed.
Disability Discrimination – failure to make reasonable adjustments
On the Claimant’s first point under this head – whether a dismissal could be a provision, criterion or practice – following Nottingham City Transport Ltd v Harvey UKEAT/ 0032/12/JOJ, a practice had ‘something of the element of repetition about it’. In the circumstances, the Employment Tribunal had reached a permissible conclusion that the individual dismissal of the Claimant in this case had not, of itself, amounted to a PCP (albeit that it might have been the result of an application of a PCP).
On the PCP found by the Employment Tribunal – the application of the Respondent’s appeal process (in particular, a seven day time limit for submitting an appeal) – a difficulty arose in the Employment Tribunal’s finding that this had given rise to a ‘substantial disadvantage’ to the Claimant as a disabled person as compared to those who were not so disabled. The Employment Tribunal’s reasoning for this conclusion was not apparent, particularly given the adjustment the Respondent had already made (allowing for a possible extension of time).
If there was a substantial disadvantage, the Employment Tribunal had been entitled to conclude that the adjustments proposed by the Claimant were not ‘reasonable’ in terms of the questions of cost and practicability. There was, however, no clear indication that it had applied section 18B Disability Discrimination Act 1995 and had regard to the extent to which taking the steps in question might have prevented the disadvantage suffered (assessing this question as a matter of balance rather than adopting an all or nothing approach). The Employment Tribunal’s representation of the medical evidence further failed to address the nuanced picture that presented (relevant to this assessment). This part of the appeal against the dismissal of the disability discrimination claim would therefore also be allowed.
Directions given for further submissions to be made (as advised) as to disposal.
Eady QC HHJ
[2015] UKEAT 0315 – 14 – 2204
Bailii
Disability Discrimination Act 1995 18B
England and Wales
Employment, Discrimination
Updated: 29 December 2021; Ref: scu.545911
