EAT Disability Discrimination : Justification – PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
C was a consultant psychiatrist. A report by the National Clinical Assessment Service identified clinical and communication deficiencies and recommended that the C and his employing Trust agree a remediation programme to enable him to retrain for his consultant position. Such a programme was never put into effect and the employer eventually offered him a sub-consultant’s post or said that he would be given contractual notice. Meanwhile he was diagnosed as having Asperger’s Syndrome, which was agreed to be a disability. The disability was linked to the communication deficiencies but not the clinical deficiencies. In the circumstances, refusing to allow C to return to work as a consultant was not disability discrimination under section 15 Equality Act 2010 because it was a proportionate means of achieving a legitimate aim, i.e. protecting patients; nor was it a breach of the duty to make reasonable adjustments, since any reasonable adjustments relating to the Asperger’s Syndrome would not deal with the clinical deficiencies and would not therefore allow the Trust to employ him as a consultant.
In finding the Trust liable for arrears of pay under section 13 ERA 1996 the Employment Tribunal had proceeded unfairly because the C had not pursued such a claim and, although it was open to the ET to consider it, they had not given the Trust sufficient notice that they intended to consider it on the merits.
Updated: 04 December 2021; Ref: scu.526529