An ET held that the dismissal of an employee who had been on long-term sickness absence was not unfair. However, it also held that the dismissal constituted unfavourable treatment because of something arising in consequence of disability pursuant to Section 15 of the Equality Act 2010.
Such an outcome is possible, as a matter of law – see City of York Council v Grossett [2018] IRLR 746 CA, a case which concerned misconduct rather than capability. However, it is of note that in O’Brien v Bolton St Catherine’s Academy [2017] ICR 737 CA Underhill LJ had expressed the view that ‘ . . it would be a pity if there were any real distinction in the context of dismissal for long-term sickness where the employee is disabled within the meaning of the 2010 Act. The law is complicated enough without parties and tribunals having routinely to judge the dismissal of such an employee by one standard for the purpose of an unfair dismissal claim and by a different standard for the purpose of discrimination law’
In the present case, each party appealed, contending that the findings in relation to the claim on which each was successful should have resulted in the other claim having succeeded.
The EAT allowed the Respondent’s appeal on the basis that the ET erred in law in failing to examine objectively the justification advanced at the date of the Hearing. Its focus on the beliefs of the dismissing officer at the time of the meeting and its failure to balance all the relevant factors amounted to an error of law. As to the ‘ordinary’ unfair dismissal, a number of contradictory findings could not be reconciled or explained by a difference in the applicable legal tests, and the Appellant’s appeal was also allowed and the case remitted for rehearing.
Citations:
[2020] UKEAT 0309 – 19 – 1302
Links:
Jurisdiction:
England and Wales
Employment
Updated: 07 December 2022; Ref: scu.652137