The law requires employers to make reasonable adjustments for disabled employees. In Knightley v Chelsea & Westminster Hospital NHS Foundation Trust, the Employment Appeal Tribunal (EAT) held that although the trust failed to make a reasonable adjustment, the dismissal was not automatically unfair as the test for unfair dismissal differs from the test for a discrimination claim.

Ms Knightley’s union, the Royal College of Midwives, instructed Thompsons to act on her behalf.

 

Basic facts

Ms Knightley suffered from stress, anxiety and reactive depression, which amounted to a disability under the Equality Act 2010. Her ill health had impacted on her attendance and although the trust made a number of adjustments to her working arrangements, she had been off work on sick leave for long periods.

At one of several formal review meetings in 2017, Ms Knightley said that she wanted to apply for ill-health retirement (IHR). At a long-term sickness absence (LTSA) hearing on 11 January 2018, she said again that she wanted to apply for IHR. Although she asked the trust to delay a decision on her dismissal while she investigated the possibility, she was given three months’ notice of her dismissal that day.

She was told on 25 January 2018 that she had 10 days in which to appeal that decision. On 7 February, she asked for a two-week extension, but this was denied. She then submitted a three-line summary appeal on 14 February, which the trust refused to consider because it was out of time.

Ms Knightley lodged a number of claims, including unfair dismissal under section 98 of the Employment Rights Act 1996 (ERA), discrimination arising from disability contrary to section 15 of the Equality Act 2010 and failure to make reasonable adjustments contrary to section 20 of the Act.

 

Tribunal decision

With regard to the failure to make reasonable adjustments, the tribunal held that the trust should have agreed to extend the deadline for lodging an appeal by two weeks. Apart from the fact that it would have been neither costly nor disruptive, it was clear that dismissal had exacerbated the impact of Ms Knightley’s disability, placing her at a substantial disadvantage compared to non-disabled employees, contrary to section 20 of the Equality Act.

However, it then went on to hold that it was proportionate for the trust to hold the review meeting and the subsequent LTSA hearing. As Ms Knightley had already said that she could not return to work and wanted to apply for IHR which could take months to process, the trust had no other option but to dismiss her. The tribunal therefore rejected her claims for unfair dismissal and discrimination arising out of disability, contrary to section 15.

Ms Knightley appealed on the basis that it was illogical for the tribunal to hold that her dismissal was not unfair, given that it had found that she had been 1) denied an effective right of appeal and 2) discriminated against when the trust failed to extend the time in which she could appeal.

 

EAT decision

Dismissing the appeal, the EAT held that just because the tribunal found that the trust was in breach of section 20 of the Equality Act, it did not mean it was automatically in breach of section 98 of the ERA or section 15 of the Equality Act as the tests for each were separate.

Although the tribunal’s findings of fact might be relevant to all three claims, the legal principles applicable to each of them had to be separately applied to the facts because the ingredients of each statutory wrong were different.

In this case, the tribunal finding that the trust should have granted an extension did not, therefore, depend on, nor did it reflect the merits of the case for dismissal, nor whether an appeal would have made any difference to the outcome.

 

Comment

This was a case in which the tribunal decided that if the appeal had been heard, the claimant would still have been dismissed. If it had concluded that there was a chance that the dismissal could have been overturned on appeal, it is considerably more likely that it would have found that the dismissal was unfair as well.

Additionally, for the discrimination arising from disability claim, the Equality and Human Rights Commission Code of Practice on Employment states that if an employer failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it would be very difficult for them to show that the treatment was objectively justified.

As in this case, a tribunal can, therefore, decide that even though something in the dismissal process was discriminatory, that does not necessarily make it unfair. Similarly, a tribunal can decide that even though there was a failure to make reasonable adjustments, the same behaviour by an employer is not necessarily discrimination arising from disability.