EAT Disability Discrimination: Section 15 – DISABILITY DISCRIMINATION – Compensation
UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Polkey deduction
Unfair Dismissal – Section 98 Employment Rights Act 1996 (‘ERA’)
Disability Discrimination – discrimination arising from disability – section 15 Equality Act 2010 (‘EqA’)
The Employment Tribunal (‘ET’) having found that the Claimant had been unfairly dismissed and that her dismissal amounted to unlawful discrimination arising from disability (Liability Judgment) and, further, that no Polkey reduction should be made
Remedy Judgment – the Respondent appealed.
On the liability appeal – allowing the appeal:
The ET had erred in its approach to the test of proportionality for the purposes of section 15 EqA 2010 and had further failed to carry out the correct assessment when considering the fairness of the dismissal under section 98(4) ERA 1996.
In determining whether dismissal was a proportionate means of achieving the legitimate aim accepted by the ET, it was entitled to take into account the Respondent’s past failure to comply with an obligation to make reasonable adjustments, but was also bound to have regard to its own finding that there was no continuing obligation. Further, to the extent that it found the Respondent’s failure to consider up-dated medical evidence to be relevant, the ET was also bound to have regard to the fact that the evidence in question had continued to provide an uncertain and pessimistic prognosis in terms of the Claimant’s ability to return to work.
As for the unfair dismissal claim, given that this was an absence-related, capability case, the ET had to consider whether the Respondent could have been expected to wait longer (BS v Dundee City Council [2014] IRLR 131 CS) but its reasoning failed to disclose an engagement with that fundamental question and that rendered the conclusion unsafe.
On the remedy appeal – this appeal would also have been allowed (albeit that it was strictly unnecessary to do so given the conclusion reached on the liability appeal):
The ET had erred in declining to apply Polkey principles to the award of compensation. It had adopted an approach that did not allow for the possibility of a fair or non-discriminatory dismissal in circumstances in which the incapacity in question had been caused or exacerbated by the employer’s conduct (contrary to the approach approved in McAdie v Royal Bank of Scotland plc [2008] ICR 1087 CA). Whilst the question of the employer’s own culpability might be relevant to the application of the band of reasonable responses test (although not determinative of it) and/or to the question of possible reasonable adjustments in the future, it could not be the complete answer that the ET’s reasoning assumed.
Eady QC J
[2015] UKEAT 0010 – 15 – 2310
Bailii
England and Wales
Employment, Discrimination
Updated: 05 January 2022; Ref: scu.553732
