Ill-health dismissals: Fairness and Disability Discrimination
In cases of dismissal for long-term sickness absence, employment tribunals must always consider whether the employer could be expected to wait any longer before dismissing.
An employment tribunal had been wrong to rule that an employee’s dismissal for long-term sickness absence was unfair, as it had not considered whether the employer could be expected to wait any longer before dismissing.
When considering a claim of discrimination arising from disability, an employment tribunal is entitled to take account of an employer’s failure to make a reasonable adjustment when considering whether dismissal is justified. However, the employment tribunal should not have taken account of the employer’s failure to allow the employee to continue to work from home as there was no evidence to suggest at the time of dismissal that this would have enabled her employee to return to work.
In Monmouthshire County Council v Harris, Ms Harris was disabled. Following Occupational Health advice, her employer allowed her to work from home early mornings, late afternoons and on Fridays. Her line manager then changed. She subsequently complained that he was not supporting her home working arrangements. She requested a return to those arrangements and then went off work sick.
An Occupational Health report indicated she was unfit for any work at that time. It was also guarded as to whether she would be able to work in future and, if so, when she might be able to return to work. She had a couple of meetings with HR whilst on sick leave and she was told that the Council could not support her ongoing absence indefinitely, but the risk of dismissal was not spelled out.
Ms Harris was given notice of dismissal and she claimed unfair dismissal and discrimination arising from disability.
The Employment Tribunal’s decision
The employment tribunal ruled that her dismissal was unfair. The Council had failed to give adequate warning of the risk of dismissal, consultation was inadequate and there had been a failure to make reasonable adjustments by allowing continued home working.
The employment tribunal also upheld her disability discrimination claim. She had been dismissed because of her sickness absence which was due to her disability and dismissal was not justified. Although the Council’s aims of achieving an appropriate use of public funds and the need to consider stresses placed on H’s colleagues were legitimate, dismissal was not a proportionate means of achieving those aims due to the employer’s failure to make a reasonable adjustment by permitting Ms Harris to work from home.
The Council appealed.
The Employment Appeal Tribunal’s decision
The EAT upheld the appeal. The employment tribunal had failed to consider whether the Council could be expected to wait any longer before dismissing. It had to consider whether the dismissal was fair or unfair, taking into account not just the employer’s background failings, but also the pressures it faced at that time and going forward.
An employment tribunal is permitted to take account of an employer’s failure to make reasonable adjustments when considering whether the dismissal of a disabled employee is justified. However, the employment tribunal in this case had been wrong to take account of the employer’s failure to allow Ms Harris to continue to work from home. At the date of dismissal there was nothing in the medical evidence which suggested that this would have enabled her to return to work. The employer was no longer under a duty to make this adjustment and the employment tribunal should not have taken this into account.
When deciding whether to dismiss an employee on long term sick leave, an employer is entitled to take account of the impact of the employee’s continued absence on the business and on other employees.
Before deciding to dismiss a disabled employee, employers should always consider whether there are any adjustments it can make which would enable the employee to return to work.
This case will now return to the employment tribunal so that it can determine whether the employer could have been expected to wait any longer before dismissing. Even if the tribunal concludes that it could not, the dismissal is still likely still to be found to be unfair due to the employer’s procedural failings. However, the tribunal is likely to reduce compensation to reflect the likelihood that even if the correct procedure had been followed, the employee would still have been dismissed.
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