Monmouthshire County Council v Harris UKEAT/0332/14/DA,UKEAT/0010/15/DA
A dismissal is fair if it is for one of the five potentially fair reasons (including capability) and a fair procedure has been followed. Therefore, an employee can be lawfully dismissed for ill-health.
Discrimination arising from disability is unlawful (s15 of the Equality Act 2010) and occurs where A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
An employer is also under a duty to make reasonable adjustments for disabled employees.
In this case, the EAT had to decide how long an employer should have to wait to dismiss in a case of long-term sickness absence, when the employee’s absence might have been avoided entirely if the employer had complied with its duty to make reasonable adjustments.
The Claimant was employed from 1992 until her dismissal in September 2013. As the Respondent knew, she was disabled for the purposes of the Equality Act 2010. Until the autumn of 2010, she was permitted (following Occupational Health advice) to work from home during early mornings and late afternoons, and on Fridays. However, at the end of August 2010 her line manager changed to Mr Austin. From then on she complained about him on a number of occasions (although initially she did not want her concerns to be raised with him).
On 10 January 2013 the Claimant complained that Mr Austin was not supporting her home working and requested a return to her pre-2010 arrangements, but then went off sick and never returned to work. The Respondent ordered an Occupational Health report which referred to “perceived work stressors” and in the opinion of Occupational Health, she was unfit to work in any role at that time, but was unclear when or if she might be able to return.
The Claimant met HR on 14 March and 16 May 2013. Whilst arranging the second meeting, HR stated that the Respondent would not be able to support her absence indefinitely, but there was no other reference to dismissal. The Claimant repeated her complaints about Mr Austin in a letter of 14 April, but whilst HR responded with a reference to the policies and procedures in place to support employees, no investigation was begun.
On 28 May, Mr Austin was one of those who decided in a meeting that the Claimant’s employment should be terminated, confirmed in writing to the Claimant on 4 June to take effect on 31 July. The Claimant’s appeal against her dismissal was rejected. During the course of her appeal, the Claimant applied for early retirement on grounds of ill health, submitting a report from her GP which said “I think that there is a very remote chance of a return to work”. Another OH report on 15 July agreed she was unfit for work in any capacity but did not declare she was permanently incapacitated (required for ill health retirement) as all treatment options had not been exhausted. Mr Fowler did not refer to this process or the GP report during the appeal. Her application for ill health retirement was rejected.
The Claimant brought a tribunal claim alleging unfair dismissal, discrimination arising from disability, failure to make reasonable adjustments and harassment relating to her disability. The Employment Tribunal agreed that, although an employee might be fairly dismissed after disability related absence was taken into account even when the symptoms had been exacerbated by the employer’s actions, her dismissal was unfair because of procedural failings (inadequate consultation, inadequate warning of the risk of dismissal, not considering the updated medical reports, Mr Austin’s involvement in the decision to dismiss, failure to consider her proposed home working request on 10 January) and because Mr Austin had effectively prevented her working from home.
The EAT (HHJ Eady QC) allowed the Respondent’s appeal, following the guidance in BS v Dundee City Council for employers.
The tribunal had found that the Claimant’s sick leave might have been avoided altogether if the employer had complied with its duty to make reasonable adjustments, and this could be taken into account. However, in this case there was no finding of any continuing obligation to make reasonable adjustments, and the medical evidence did not identify reasonable adjustments which could have been made to enable the Claimant to return to work.
What to take away?
The EAT has confirmed that the English tribunals should also follow the BS v Dundee City Council guidance set out by the Court of Session for dismissals following long-term sickness absence.
Guidance for employers before dismissing an employee on long-term sickness absence
- In all the circumstances of the case, should any reasonable employer have waited longer before dismissing the employee (the critical question)
- the employee must be consulted and their views taken into account
- the employer should take steps (obtaining proper medical advice) to discover the employee’s medical condition and likely prognosis
(BS v Dundee City Council, 2014)
A tribunal may take into account whether the sick leave could have been avoided altogether if the employer had complied with its duty to make reasonable adjustments. However, a tribunal may also take into account the pressures on the employer at the time of the dismissal.