A recent Judgment handed down by the Employment Appeals Tribunal (EAT), in the case of Monmouthshire County Council v Harris, has confirmed that in claims for discrimination and unfair dismissal arising out of long term sick leave, it is important to assess not only whether the employer has complied with their obligation to make reasonable adjustments, but also have regard as to whether there is a continuing obligation to make the adjustments at the time of dismissal.
Mrs Harris worked for the council as a senior education welfare officer. She was disabled with four conditions. She had three occupational health reports, all of which made recommendations for working from home. She was left to implement the recommendations herself and had adopted a pattern of working from home during early mornings and late afternoons and on Fridays.
In early 2013, a dispute arose between Mrs Harris and her supervisor which related to her working from home arrangement. Following this, she went off work due to ill-health, never to return.
In March 2013, an occupational health report gave no definitive timescale for when Mrs Harris would be fit to return to work. Her GP records show that her health had deteriorated over time from work-related stress. Meetings with HR followed and the decision was taken to terminate her employment on grounds of capability due to ill-health.
The decision was formally conveyed in a letter dated 4 June 2013 to take effect on 31 July 2013. On 25 October 2013, Mrs Harris presented an employment tribunal claim for unfair dismissal, disability discrimination arising out of her disability, a failure to make reasonable adjustments, harassment and unfair dismissal.
She was awarded £238,216 after the Tribunal found it to be an unfair dismissal and discrimination arising out of disability. Monmouthshire County Council appealed to the EAT.
Employment Appeal Tribunal Decision
When considering the discrimination arising out of a disability claim, Her Honour Judge Eady QC clarified that when determining whether the dismissal was a proportionate means of achieving a legitimate aim, the Tribunal at first instance was entitled to not only take into account the Respondent’s past failure to comply with an obligation to make reasonable adjustments, but was also bound to consider whether or not there was a continuing obligation to make reasonable adjustments. By the time of the dismissal the medical evidence confirmed that Mrs Harris was not fit to work, regardless of any adjustment that might have been made for her. In view of this there was no reasonable adjustment that could have been made that would have prevented dismissal.
As for the unfair dismissal claim, the Tribunal should have applied itself to the question of whether the Respondent could have been expected to wait longer, as well as the question of the adequacy of any consultation with the Claimant and the consideration of “proper medical advice” (BS v Dundee). However the Tribunal failed to address this question and therefore the appeal was allowed.
This decision highlights the importance of employers ensuring they consider whether there are any reasonable adjustments that can be made prior to dismissing a disabled employee due to capability. If an employer has failed to make a reasonable adjustment which would have prevented the dismissal, it will be very difficult for them to show that the treatment was objectively justified for the purposes of a discrimination arising from disability claim.
For more information on how to address issues relating to discrimination and reasonable adjustments, please contact a member of the Employment Team at Devonshires Solicitors LLP.