The Employment Appeal Tribunal (EAT) has held in Monmouthshire County Council v Harris that tribunals should ask in a claim of unfair dismissal on grounds of capability following ill-health absence whether the employer could have been expected to wait longer before deciding to dismiss.
Basic facts
Ms Harris, who was disabled, was allowed by her employer to work from home early morning, late afternoons and Fridays. However, after her line manager changed, Ms Harris complained that the new manager was undermining these arrangements to the point where she was prevented from working at home.
After going off sick in January 2013, her employer referred her to occupational health. Describing her health conditions as chronic, the advisor could not say when she might be fit to return to work. During her sick leave, Ms Harris met with a human resources officer, Ms Thomas, who referred to the fact that the Council could not support her absence indefinitely although she did not say that she might be dismissed.
In April, Ms Harris repeated her complaints about her manager and their working relationship. No investigation was carried out into her complaints. Instead, a meeting was held in May involving the manager and Human Resources at which it was decided to terminate Ms Harris’ employment with effect from the end of July.
Ms Harris brought a claim for unfair dismissal and argued that it also constituted an act of unlawful discrimination arising from disability. In addition, she claimed that the Council had failed to make reasonable adjustments.
Tribunal decision
The employment tribunal agreed that her dismissal was unfair. The reason for the dismissal was her sickness absence arising from her disability, but the Council had not given her adequate warning that she might be dismissed and had failed to consult with her. It also found that her employer had failed to make reasonable adjustments which affected the fairness of her dismissal and that it had failed to take into account updated medical reports.
As for the complaint of discrimination arising from disability, the tribunal found that Ms Harris had been dismissed because of something arising in consequence of her disability (her level of sickness absence). As the Council had failed to make reasonable adjustments, the dismissal could not be justified. If her employer had let her work from home, she might not have been absent at all.
Her claim for failure to make a reasonable adjustment was held to be out of time and the tribunal did not consider that it was just and equitable to extend time.
EAT decision
The EAT held that in an absence related capability dismissal the tribunal had to consider whether the employer could have been expected to wait longer and not just whether there had been adequate consultation and if proper medical evidence had been obtained. Having asked that question, the tribunal should then have asked whether dismissal was within the range of reasonable responses within that context. As the tribunal had failed to carry out this assessment, its conclusion could not stand.
As for the decision on discrimination arising from a disability, in determining whether or not the decision to dismiss was a proportionate means of achieving a legitimate aim, the EAT accepted that the tribunal was entitled to take into account the Council’s earlier failure to make a reasonable adjustment. However, it was also bound to have regard to the fact that there was no continuing obligation at the time of dismissal and to the fact that the available medical evidence indicated “an uncertain and pessimistic prognosis” in terms of whether Ms Harris would be able to return to work.