The London Employment Appeal Tribunal (EAT) has overturned an employment tribunal’s finding that a former charity worker dismissed for ill-health capability suffered disability discrimination.
According to the EAT’s judgement there was no proven link between the disability of the claimant and her dismissal. The Judge said that the employee had not presented her former employer with the disability discrimination claim and “it therefore did not respond to it”, and said the previous Tribunal judgment in favour of the employee “must be set aside”.
During a holiday to Ghana in August 2014, she became seriously ill with muscular tumors known as fibroids on her uterus, and anaemia. On her return home, she was immediately signed off work. She never returned to work. In November 2014, a meeting took place between the employee, her line manager and a HR manager, regarding her condition. It was left that matters would be reviewed in due course.
A first stage long-term sickness absence review took place on 22 January 2015 under the employers sickness absence policy, followed by an occupational health assessment on 6 February 2015. This found it was unrealistic for the employee to attempt to return to work, and it was impossible to predict when she may return.
Although the employee suggested she could return to work within weeks during the first review meeting on 20 February 2015, another occupational health assessment in April 2015 revealed she could not return within four to six weeks. By the time the employee’s entitlement to sick pay came to an end in April 2015, she was invited to a second sickness absence review on 29 April 2015. The only reference made in the meeting to dismissal was by the employee. However, the employee was dismissed on the grounds of ill-health capability by letter dated 1 May 2015. She appealed 10 days later.
During the appeal hearing on 29 May 2015, the employee said the meeting on 29 April had been unfair and that she would have explored other options with her doctor had she known the seriousness of the meeting. By a letter dated 17 June 2015, her appeal was dismissed.
She brought her claim to the employment tribunal. Looking at the process as a whole, the tribunal held that the employer’s conclusion in the appeal that the employee remained unfit for work for the foreseeable future was open to her on the evidence, and that accordingly the dismissal was substantively fair.
As to the question of fairness, however, the tribunal concluded that the dismissal stage was procedurally unfair, because the employer, both in the 29 April meeting and in its letter inviting her to it, failed to explicitly tell the employee in clear terms that the process had reached the second stage formal meeting under its policy and that one of the options was dismissal.
Acknowledging that the fairness of a dismissal must be considered in the light of the procedure as a whole, the tribunal considered the appeal process. It found that the procedural unfairness at the dismissal stage was not cured by the employer’s appeal process. It found that the employee’s claim of discrimination arising from disability was established but it needed “to make it clear that we have no doubt that the claimant would have been dismissed within a very short while had a fair process been followed”.
The employer appealed and the Judge allowed the appeal and concluded that the claim of unfair dismissal should be dismissed because the employer had adopted a fair procedure. In addition: “As the employee was no longer in receipt of company sick pay at the point of her dismissal, she has suffered no out of pocket loss because of this omission.”
The employers appeal against the discrimination the Judge said that such a claim required proof of the causal link between her disability and treatment, which the employee had failed to provide.
Chris Wilkinson of Expert HR Solutions said that the employer could have saved themselves a lot of money and time had it been explicit about the potential outcome of the hearings and given the employee the opportunity to explore other opportunities at an earlier stage.
If you want pragmatic advice on any matter concerning your employees or potential employees why not give Expert HR Solutions a call on 01202 611033, your initial consultation will be FREE.