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concerns about her working relationship with Mr Austin and complained that the decision to dismiss was based on an out of date report.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.The Employment Tribunal concluded that the actions of Mr Austin in January 2013 amounted to the withdrawal of previously agreed home working arrangements. The result was that Mrs Harris was at a substantial disadvantage compared to non disabled employees. Subsequently, on 31 July 2013 she was dismissed because of something arising in consequence of her disability: her sickness absence. As a result there was no continuing obligation to make adjustments – “that time had passed”. Further the Council had established a legitimate aim – the safeguarding of public funds and the stress placed on other Education Welfare Officers caused by not being able to recruit a replacement for Mrs Harris. the proper question was whether dismissal was a proportionate means of achieving that aim.
The Employment Tribunal had focused on the obligation to make reasonable adjustments but had not found that the Council remained under an obligation to make reasonable adjustments when it made the decision to dismiss. Her Honour Judge Eady QC noted that the Tribunal’s reasoning suggested that the steps it had identified (concerning home working and Mr Austin) would still reasonably have been required at the time the decision to dismiss was taken (or confirmed). However it was not Mrs Harris’ case that taking these steps would have removed the disadvantage at that stage. Allowing that a background failure to make reasonable adjustments might not have been an irrelevant factor, nonetheless the Tribunal did not demonstrate that it had regard to the fact that there were no reasonable adjustments that the Council might have made when considering the decision to dismiss.
As for failure to take into account the later medical reports (in connection with the application for ill-health retirement) the Tribunal did not explain their relevance. In any event the reports did not provide an optimistic view of Mrs Harris’ likely date of return.
The Tribunal should have asked whether the dismissal was a proportionate means of achieving the Council’s aim in the context of a past failure to comply with a requirement to make reasonable adjustments but where there was no such continuing obligation and the updated medical evidence continued to provide an “an uncertain and pessimistic prognosis”. Accordingly the finding of disability discrimination could not stand.
As for unfair dismissal, the Tribunal was bound to apply the range of reasonable responses test to the decision to dismiss. It was relevant that there was no finding of a continuing obligation (with reference to possible earlier reasonable adjustments) and the medical evidence did not identify reasonable adjustments that could then be made to ensure Mrs Harris’ return to work.
Since this was a sickness incapacity case the Employment Tribunal should have considered whether the Council could have been expected to wait longer, as well as considering the adequacy of any consultation with Mrs Harris and obtaining proper medical advice.
Accordingly the appeals were allowed.
I expect that many readers would not have expected this outcome. The logic applied in the EAT appears tortuous at times and one would be forgiven for questioning just what an employer is supposed to do and, equally, what must be done by a claimant to establish claims of discrimination and capacity related unfair dismissal. What is not in doubt is that there are no easy answers!