Unfair dismissal: Must a finding of discrimination always make dismissal unfair?

In Knightley v Chelsea & Westminster Hospital NHS Foundation Trust [2022] EAT 63, the Employment Appeal Tribunal (EAT) held that the claimant had not been unfairly dismissed after being denied an extension of time to appeal her dismissal, but that the denial of the extension of time amounted to a failure to make reasonable adjustments under s20 of the Equality Act 2010 (EqA 2010).

The EAT held that the legal test for each claim should be applied separately, and that a failure to make reasonable adjustments need not always mean that any subsequent dismissal is unfair.

What happened?

The claimant (K) was employed as a Lead Midwife for Mental Health from 2009 until her dismissal in 2018. Her role involved developing and maintaining high standards of care for women experiencing mental health problems during pregnancy and in the immediate post-natal period. This meant that she had to deal with vulnerable patients, high-risk pregnancies, and other complex cases.

K suffered with stress, anxiety and reactive depression, which amounted to a disability for the purposes of the Equality Act 2010. She had also been involved in two protracted and unrelated sets of legal proceedings, adding to her stress and subsequently impacting upon her ability to carry out her role.

K took multiple periods of long-term sick leave between 2012 and her dismissal in 2018. When she returned to work following absence in 2016, she agreed to temporarily work in a post which was of lower risk to patients of the Trust. However, after working for two weeks, she informed her employer that she was looking into ill-health retirement. She subsequently raised a grievance about the management of her absences, and again went off sick from March 2017 until her dismissal.

In January 2018, there was a long-term sickness absence hearing, before which K was reminded that the process could result in her dismissal and that she had the right to bring a companion. At the meeting, K said that she was unfit to work indefinitely, she no longer felt able to return to work, no adjustments could change this, and she wished to apply for ill-health retirement, though no such application had been made at the time of the hearing. She asked Ms Cochrane, who conducted the meeting, to delay the decision pending her application for ill-health retirement; Ms Cochrane informed her that it was not the practice of the Trust to delay a decision in this situation and later informed her of her dismissal.

K was then formally notified by letter on 25 January 2018 of the reasons for her dismissal and her right to appeal within ten working days. She then emailed on 7 February 2018 to ask for a two-week extension and this was refused due to her previous pattern of behaviour.

Employment Tribunal claim

K brought three separate claims; unfair dismissal; failure to make reasonable adjustments in respect of the failure to allow her an extension of time to lodge an appeal; and discrimination ‘arising from disability’ (under s15 Equality Act 2010) on the basis that her dismissal was a result of her sickness absence record, which was in turn a result of her disability, and was therefore discriminatory.

At first instance, the Employment Tribunal (ET) found that extending the time limit to submit an appeal against dismissal would have been a reasonable adjustment. However, the Trust succeeded in defending the discrimination arising from disability claim because it could objectively justify the dismissal. The Trust also successfully defended the unfair dismissal claim.

In finding the dismissal to be fair, the ET took into account:

• K’s persistently poor attendance record
• the impact her absence was having on her colleagues and the service provided to the public
• her position that she was not able to return to work in the foreseeable future and that nothing could be done about this
• that she did not wish to return to work for the Trust in any event.

Appeal to EAT

K argued that the ET’s finding in relation to the failure to make reasonable adjustments claim should have led to her other claims succeeding. The EAT dismissed the appeal.

Key findings

• The EAT observed that the legal tests in relation to each type of claim are different so the legal test for each claim should have been separately applied to the facts of the case, even if those facts supported more than one claim.
• The ET applied the correct principles of law to the claim of unfair dismissal, considering whether the Trust’s decision to dismiss was in ‘the band of reasonable responses’. The application of the failure to make reasonable adjustments claim had no bearing on this.
• Whether a finding that an employer failed to make a reasonable adjustment means that an unfair dismissal claim will succeed depends on the relationship between the adjustment and the dismissal.
• Whether dismissal is a ‘proportionate means of achieving a legitimate aim’ for the purposes of a discrimination arising from disability claim is different to whether a reasonable adjustment could have been made to the procedure leading to the dismissal, and different again to the question of whether the dismissal is fair, for the purposes of the unfair dismissal rules.
• In view of the specific circumstances relating to K, this was not a case in which an appeal against dismissal would serve any useful purpose.

What does this mean for me?

Disability discrimination law can be difficult to navigate, especially where an employee’s persistent and/or long term ill-health absences are causing real disruption to your organisation.

This case is a comforting confirmation that it is possible in certain circumstances to fairly dismiss a disabled employee for capability reasons, where their absences can no longer be sustained by your organisation. The following key factors should be taken into account when considering whether it is fair to dismiss:

• the effect that the worker’s absence is having on the workplace and whether you as their employer could reasonably be expected to wait any longer
• whether you have attempted to make reasonable adjustments to enable the worker to continue working
• whether up to date Occupational Health and/or medical advice has been obtained
• whether the worker has positively engaged with a sickness absence management procedure or attempts to help them back to work.

Where a worker requests a disability-related adjustment during a disciplinary or capability process, you should seriously consider agreeing to this wherever it is reasonable to do so, even where you see little value in the adjustment or feel that it will make no difference to the dismissal outcome.

While this case confirms that a failure to make an adjustment to a dismissal procedure will not always make a dismissal unfair and did not do so on the facts of this case, it is easy to envisage different circumstances where a failure to make a reasonable adjustment could in fact undermine the fairness of the dismissal. Adopting an open-minded approach to reasonable adjustments may also reduce the likelihood of a claim being made against your organisation.

If you require any advice or support with managing employee sickness absence or reasonable adjustments or are considering the capability dismissal of a disabled employee, please do not hesitate to get in touch to seek advice.