In the case of Monmouthshire County Council v Harris, the Employment Appeal Tribunal has held that the Tribunal failed to consider whether the employer could have reasonably been expected to wait longer before dismissing the employee. The Tribunal was also entitled to take into account its finding that the Claimant’s sick leave may have been avoided had the employer not failed to make reasonable adjustments (despite her reasonable adjustments claim being out of time).
The Claimant, Ms Harris, was employed as a Senior Education Welfare Officer for the Council from September 1992. The Claimant suffered from depression, sinusitis, asthma and underactive thyroid. Occupational Health had confirmed in a report to the Respondent that the Claimant’s conditions were ‘chronic’. As a result, she was likely to be disabled for the purposes of the Equality Act 2010. The Claimant had been permitted to work partly from home to assist her.
The Claimant’s line manager changed in August 2010. Following complaints regarding her new line manager, matters came to a head in January 2013 when she returned from pre-booked annual leave and was told by her line manager that he would no longer support her home working arrangement. The Claimant went off sick and did not return to work. The Claimant was referred to Occupational Health and was deemed, at that stage, to be ‘unfit’ for work in any role. There was no indication when she may be able to return to work.
The Respondent held two meetings with the Claimant during her sick leave in March and May of 2013 in which she was informed that the Respondent could not support an “indefinite” period of sickness absence long term – although it did not inform the Claimant of a risk of dismissal. The Claimant raised complaints with the Respondent reiterating her concerns regarding her line manager. The Respondent did not investigate the complaints and no action was taken.
The Claimant was dismissed with notice by letter on 4th June 2013. Her last day was 31st July 2013. The Claimant’s appeal against her dismissal was rejected.
The Claimant subsequently applied for ill-health retirement in reliance upon her GP’s report which confirmed that there was a remote chance of a return to work. This was supported by a further Occupational Health report dated 15 July 2013 confirming that she was unfit for work. It didn’t however confirm whether she was permanently incapacitated. The application was declined. In October 2013, the Claimant obtained a further opinion confirming that she remained unfit for work for the foreseeable future. She bought claims of unfair dismissal, discrimination arising from disability, failure to make reasonable adjustments and disability-related harassment.
The Tribunal held that the Claimant had been unfairly dismissed. Her claim for discrimination arising from disability was also successful but her reasonable adjustments and harassment claims were out of time. The Respondent appealed.
In relation to the unfair dismissal claim, the EAT criticised the Tribunal for failing to following the guidance laid down in BS v Dundee City Council. It did not demonstrate that it had considered:
- whether the Respondent could have been expected to wait longer before dismissing;
- the question of the adequacy of any consultation with the Claimant; and
- the obtaining of proper medical advice.
The Tribunal had not taken into account the involvement of the Claimant’s line manager, the lack of consultation or the failure to consider up to date medical evidence in reliance upon the case of East Lindsey District Council v Daubney which sets down the requirement to obtain the up to date medical position prior to making a decision regarding dismissal. The appeal was allowed.
In relation to the discrimination claim, the EAT concluded that the Claimant was dismissed due to her level of sickness absence. This was something arising in consequence of her disability, meeting the test in Section 15 Equality Act 2010. The Respondent’s previous failure to make reasonable adjustments (by withdrawing the home working arrangement) was part of the background to be taken into account which may have resulted in the Claimant being unable to return to work. The Tribunal erred by failing to explain the relevance of the failure to make reasonable adjustments and neglected to consider whether the Respondent was able to justify its treatment as a proportionate means of achieving a legitimate aim. The appeal was therefore allowed.
It is important that, before making a decision whether to dismiss, an employer carries out a full evaluation as to whether it is reasonable in all of the circumstances (including the background history) to dismiss. An ability to demonstrate the reasons for any decision will assist the Tribunal in determining the question of reasonableness.
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