Thomson v Imperial College Healthcare NHS Trust (Disability Discrimination : Disability): EAT 30 Jan 2015

DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL – Reasonableness of dismissal
UNFAIR DISMISSAL – Procedural fairness/automatically unfair dismissal
UNFAIR DISMISSAL – Polkey deduction
The Claimant, Consultant Neonatologist, was dismissed for bullying colleagues. She asserted that the Respondent failed to make a reasonable adjustment in dismissing her as her admitted disability, dyslexia, made it more likely that she would engage in that type of behaviour. She also asserted that, notwithstanding her disability was identified at the Case Management Discussion as dyslexia, this should be aggregated with depression. Held that the Employment Tribunal correctly considered the claim on the basis that the disability alleged was dyslexia. Chapman v Simon [1994] IRLR 124 applied. The Claimant lost the reasonable adjustments claim on the facts. The cross-appeal from the finding of unfair dismissal is dismissed. The Employment Tribunal did not err in concluding that it was unreasonable to assign a doctor who, although of the right level, did not appear to have any training or experience in conducting such hearings to conduct and decide the outcome of the Claimant’s disciplinary hearing. He misapplied the Respondent’s disciplinary procedure to the detriment of the Claimant. It was not an error for the Employment Tribunal not to permit the doctor to be recalled to give more evidence of his experience/training in disciplinary procedures. It was a case management decision for them in the circumstances. The Employment Tribunal did not err in holding the dismissal to be unfair. The Employment Tribunal did not fail to have regard to guidance in Software 2000 Ltd v Andrews in deciding that there should be no Polkey reduction on either of the bases contended for. Nor did the Employment Tribunal err in failing to make a deduction of 100% or of a percentage greater than was made for contributory fault.

Slade J
[2015] UKEAT 0218 – 14 – 3001
England and Wales

Employment, Discrimination

Updated: 29 December 2021; Ref: scu.544865