Disabled Employees

If any employer fails to make a reasonable adjustment when dismissing a disabled employee, is that dismissal unfair?

This was the question put to the EAT in Knightley v Chelsea & Westminster Hospital NHS Trust, in which an NHS trust when dismissing their employee on grounds of capability had not allowed the employee an extension of time to lodge an appeal against her dismissal.

The ET had upheld the employees claim under section 20 Equality Act 2010 but had then found her dismissal was “fair and proportionate”, and therefore dismissed her claims for unfair dismissal and discrimination arising out of disability, contrary to section 15 Equality Act 2010. 

The employee appealed to the EAT, on several grounds, including that the dismissal ought to have been held to be unfair given the failure to make a reasonable adjustment, and the lack of an effective appeal,as well as that the dismissal should have been held to be a breach of s15 Equality Act. 

The EAT dismissed the appeal; the fact that an employer might fail on one of the claims does not mean that it will fail the others: “The fairness and the proportionality of a dismissal are not identical legal concepts. The correct proposition would have to be that it was disproportionate to dismiss because the claimant was not given a fair opportunity to appeal rather than it was disproportionate because her dismissal had been found to be contrary to section 98(4) of the Employment Rights Act 1996”.

Tread carefully when giving reasons for dismissal

The recent case of Patel v Lucy A Raymond & Sons Limited shows that employers must be clear when making dismissals and not leave any room for ambiguity, particularly when the employee is disabled. All employers must uphold their duty to make reasonable adjustments when they know, or could be expected to know, that an employee or job applicant has a disability. 

The main focus of the tribunal was whether the dismissal was because of something arising from the claimant’s disability, which in this case was the employee’s dyslexia.

The claimant, the employee, was a 26-year-old dyslexic man, employed by a firm of accountants. After a month, he was dismissed by the employer on the basis that the managing partner had “taken the wrong decision in giving a dyslexic person the job”. Feedback provided after his dismissal was that he was “too demanding, in common with his generation of millennials”. The employee brought a claim for discrimination on the basis of age and disability.

The age discrimination claim was dismissed by the ET but the claimant’s claim of discrimination arising from disability in respect of the dismissal was well-founded and was upheld.

Employers must also take care and reasonable steps to ensure that they are ensuring they are making reasonable adjustments that are relevant to the person and disability in question, not what they might assume to be the case, or be the case for another individual.

Posted on 5 May, 2022 by Ortolan

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