Dismissal based on sickness absence can be complicated

In Monmouthshire County Council -v- Harris the Employment Appeal Tribunal was asked to review a finding in the Cardiff Employment Tribunal that Mrs Harris was unfairly dismissed and that the dismissal was an act of disability discrimination. At a remedy hearing in September 2014 she was awarded £238,216.37. The Employment Appeal Tribunal proceeded on the basis of determining, in respect of the unfair dismissal, whether the Employment Tribunal erred in regarding procedural defects as sufficient to make the dismissal substantively unfair and whether there was a failure to consider the Council’s substantive grounds for dismissal. It also considered whether the Tribunal erred in failing to consider, in the context of discrimination, whether dismissal was a proportionate means of achieving a legitimate aim and whether or not it took into account irrelevant considerations.

Mrs Harris had worked for the Council since 1992. Latterly she was suffering from depression, sinusitis, asthma and an underactive thyroid. Accordingly she was disabled for the purposes of the Equality Act 2010. At a time prior to autumn 2010 and following occupational health advice she had been permitted to change her working arrangements to include working from home. Thereafter a new line manager, Mr Austin, was appointed. In January 2013 Mrs Harris complained that Mr Harris was not supporting her working from home and asked to return to her previous arrangements. Thereafter she commenced a period of sickness absence and did not return to work.

She attended meetings with HR in March and May 2013. On 28 May Mar Austin met with HR and it was decided that Mrs Harris’ employment should be terminated. She was notified by letter dated 4 June. the dismissal was due to take effect on 31 July. She appealed and the appeal was heard on 4 July. She objected to a lack of consultation, raised concerns about her working relationship with Mr Austin and complained that the decision to dismiss was based on an out of date report. The appeal was rejected.

In June and July she applied for ill-health retirement but this was declined. A medical opinion obtained in October 2013 concluded that although she was still unfit for work and likely to remain so for the foreseeable future, it could not be said that she would be permanently unfit until the normal retirement age.

At the resulting Employment Tribunal it was noted that the reason for dismissal was “absence which arose due to the claimant’s medical condition (a disability)”. There was inadequate warning of the possibility of dismissal and inadequate consultation. In addition there was a failure to make reasonable adjustments which also went to the question of the fairness of the employer’s behaviour. Mr Austin had effectively prevented Mrs Harris from maintaining the home working arrangements from January 2013. There was also a failure to take into account the updated reports that had been obtained for the ill-health retirement application. The fairness of the dismissal was also tainted by the active participation of Mr Austin. As for the discrimination claim the Council failed to make reasonable adjustments on the basis that if working from home was properly implemented from January 2013 there may have been no ongoing sickness absence at all. The Council appealed.

no compensation for manner of dismissal

In Edwards v Chesterfield Royal Hospital and Botham (FC) v Ministry of Defence the Supreme Court revisited the question of whether, over and above any right to compensation for unfair dismissal, employees can recover damages for the way in which they have been dismissed and specifically in the situation where the employer has failed to follow a contractual disciplinary procedure.The cases of Mr Edwards and Mr Botham concerned the same issues of law and were therefore considered together.

It has been long been clear that there is no scope for damages for injury to feelings being awarded in a claim for breach of contract (as opposed to a discrimination claim, where compensation for injury to feelings is established by statute). Numerous attempts have been made, however, to try and establish the possibility that a separate claim might succeed where an express term had been broken, rather than the implied term of mutual trust and confidence. The Supreme Court, by a majority, has now excluded that possibility, rejecting the suggestion that breach of a disciplinary procedure followed as part of the dismissal process can somehow be seen as independent of the dismissal itself. To do so might take it outside the rule excluding separate damages for the manner of dismissal – something the Supreme Court considered Parliament had intended should be fully encompassed within the statutory protection against unfair dismissal.