Tameside Hospital NHS Foundation Trust v Mylott: EAT 11 Mar 2011

EAT UNFAIR DISMISSAL – S. 98A (2) Employment Rights Act
DISABILITY DISCRIMINATION – Disability related discrimination
DISABILITY DISCRIMINATION – Reasonable adjustments
Claimant goes off sick following incident of alleged offensive behaviour by manager – Existing mental health difficulties exacerbated – Employers fail, despite recommendation from occupational health department, to carry out independent review of Claimant’s treatment – Other procedural failures – Failures held by Tribunal to constitute breaches of duty under section 4A of Disability Discrimination Act 1995 and to render dismissal unfair and an act of disability-related discrimination – At subsequent remedy hearing Claimant awarded andpound;4,410 for unfair dismissal and andpound;22,000 for disability discrimination, comprising andpound;16,000 for injury to feelings and andpound;6,000 by way of ‘aggravated damages’, with no award for loss of earnings.
On appeal against liability decision, employers contend that differences in the procedure followed would not have affected the outcome; and that accordingly (a) the dismissal was not unfair, pursuant to section 98A (2) of Employment Rights Act 1996; and (b) section 4A did not require the adoption of different procedures – As to disability-related discrimination, London Borough of Lewisham v Malcolm [2008] IRLR 700 relied on.
On remedy, Claimant appeals against refusal to award compensation for loss of earnings – Employers appeal against quantum of award for injury to feelings and against award of aggravated damages.
(1) Tribunal entitled to find that if proper procedures had been followed Claimant would probably not have been dismissed and that the adoption of such procedures was (save in the respect specified at (2) below) required by section 4A
(2) Tribunal not entitled to find that section 4A gave rise to a duty on the employer of a disabled employee to take steps to facilitate an application for ill-health retirement
(3) Appeal allowed as regards disability-related discrimination: Malcolm followed
(4) Tribunal entitled not to award compensation for loss of earnings where Claimant had not adduced expert evidence about the effect of employers’ breaches on his mental health
(5) Award for injury to feelings open to Tribunal on the evidence
(6) Facts found did not justify award of aggravated damages

Underhill P J
[2010] UKEAT 0399 – 10 – 1304
Employment Rights Act 1996 98A(2)
England and Wales

Employment, Discrimination

Updated: 01 November 2021; Ref: scu.430555