Education Law Speed Read – 16/07/18

Disability discrimination

This week’s speed read concerns discrimination arising from a disability and when this can be objectively justified. This follows the Employment Appeal Tribunal case of Ali v Torrosian (UKEAT/0029/18).

Facts

The Claimant, a GP, went on long term sick following a heart attack. His ensuing chronic heart condition was accepted as being a disability for Equality Act purposes.

The Claimant obtained a medical report stating that he was unlikely to be able to return to work full-time, but could do so on a part-time basis. On the expiry of his sick note, the Claimant was dismissed on capability grounds.

The Claimant brought unfair dismissal and disability discrimination claims. The ET determined that the dismissal was procedurally unfair due to the employer’s failure to consider part-time work as an option. However, the ET, whilst accepting that the dismissal amounted to unfavourable treatment and was in consequence of his disability, stated that the treatment could be objectively justified by the employer’s legitimate aim of ensuring its patients received the best possible care.

Decision

The EAT held that the ET had incorrectly applied the test here. Whilst it considered the impact of the Claimant’s absence, it failed to consider part-time working as a less onerous way for the employer to achieve its legitimate aims. Given that the Claimant stated he could return on a part-time basis and was backed up by medical evidence, the ET erred in not considering this.

The EAT remitted the decision to the ET to consider whether part-time working was a proportionate to the employer’s legitimate aim.

Effect

This case shows that schools should be wary of dismissing employees on the grounds of capability where there is a suggestion that an altered shift pattern or alternative duties have been raise, especially where there is a medical report to back this up.

Whilst the tests for determining unfair dismissal and disability discrimination are different, similar considerations will be used by an ET when assessing whether a dismissal is unfair or discriminatory. If it is found that a failure to consider alternatives to dismissal is unfair, it is likely to be the case that this cannot be objectively justified.

Lancaster & Duke v Wileman

In Lancaster & Duke v Wileman the Employment Appeal Tribunal (EAT) considered whether an employee, dismissed for gross misconduct just short of qualifying for unfair dismissal, could claim the statutory week’s notice to take them over the two years’ service required to bring a claim of unfair dismissal.

Facts

Ms Wileman had been employed by Lancaster & Duke (L&D) since 22 September 2014. She was summarily dismissed for gross misconduct on 20 September 2016, two days short of the second anniversary of her employment.

L&D did not follow any sort of procedure prior to making the decision to dismiss Ms Wileman, nor was she afforded any right to appeal. Ms Wileman also lodged a grievance on the evening of her dismissal but no grievance hearing took place.

Employment Tribunal

Ms Wileman claimed unfair dismissal and argued before the Employment Tribunal (ET) that adding the statutory minimum notice period of a week would take her over the two years minimum service required to bring such a claim.

The ET agreed and held that the statutory minimum notice period of a week was not displaced by the employer’s right to dismiss summarily due to an employee’s conduct. The ET made no finding as to whether Ms Wileman’s conduct for which she was summarily dismissed could be said to have constituted gross misconduct.

Employment Appeal Tribunal

The EAT disagreed with the ET, holding that the statutory minimum notice period of a week was subject to the employer’s right to dismiss without notice in events of an employee’s gross misconduct, and so Ms Wileman was not eligible to bring a claim of unfair dismissal.

The EAT remitted the case back to the ET to consider whether Ms Wileman had in fact committed gross misconduct.

Comment

This case demonstrates that where dismissal is being contemplated in the week before the two year qualifying period is reached, employers are able to get around the statutory minimum notice period of a week provided there has been a sufficiently serious act of misconduct by the employee.

As a minimum, employers should follow some form of process in which the alleged serious misconduct is documented in order to evidence the reason for dismissal without notice. In the absence of a sufficiently serious act of misconduct, dismissal in the week before the two year qualifying period is triggered either with or without a payment in lieu of notice will take the employee over the two year threshold.

If you have any queries on the above and how it will affect you, please do not hesitate to contact a member of our education team.