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Many employment tribunal claims involve claims for both unfair dismissal and discrimination. They therefore involve the application of different legal tests to the same set of facts. Capability dismissals in particular lend themselves to claims that there has been discrimination – arising from a disability which impacts health and has led to the capability procedure – as well as unfair dismissal – that the dismissal itself was either substantively or procedurally unfair. It is easy to presume that if one claim wins then so should the other, but that overlooks the fact that the legal tests are different. In the recent case of Knightley v Westminster Hospital NHS Foundation Trust, the EAT has given useful guidance on the relationship between the laws on unfair dismissal and discrimination. 

The employee was a Lead Midwife for Mental Health, a key organisational role in an NHS department which provided mental health support to pregnant and post-natal women. The role involved dealing with vulnerable patients and high-risk pregnancies. She had stress, anxiety and reactive depression which the employer conceded was a disability. She had a long history of high sickness absence dating back to 2013, including a year-long period of absence between 2015 and 2016. Her absence impacted the service and raised serious concerns about patient safety. The employer used its absence management process which included occupational health assessments and redeployment to another less demanding department. Despite these adjustments, the employee was often late for work and left early. The employee raised a grievance about the way she was being managed but it was largely dismissed. She refused to return to work, saying there were no adjustments that could help, and she wanted ill health retirement. A final capability hearing took place in January 2018, by which time she had been continually absent for 8 months and signed off for a further 6 months. She was dismissed with 12 weeks’ notice. She was given the right to appeal within 10 working days. She asked for an extension which was denied due to the feeling that it was part of an established pattern of behaviour. She submitted a short appeal after the deadline which was refused. She brought tribunal claims for unfair dismissal and disability discrimination, including a failure to make reasonable adjustments and discrimination arising from disability.

The employment tribunal found that the short appeal deadline put the employee at a substantial disadvantage compared to people who weren’t disabled and said that an extension of time would have been a reasonable adjustment. However, they concluded that the appeal would not have succeeded anyway because all the reasoning in place at the time of dismissal was still relevant at the point of appeal. They upheld that discrete claim for discrimination and awarded £3000 but dismissed all other claims including the claim for unfair dismissal. The employee appealed, saying that her dismissal could not have been fair if the dismissal process sitting behind it had been, even if only in part, discriminatory. The EAT upheld the tribunal’s decision. The legal tests for unfair dismissal and discrimination are different and, when applied to the same facts, may produce different legal outcomes. Success in one does not guarantee success in the other – the tribunal must apply each legal test to the facts. When looking at a dismissal, the tribunal must apply the range of reasonable responses test, rather than applying its own view of whether a particular procedural step should have been taken. The key question is whether the adjustment in question – which was not made – means the dismissal would be unnecessary. If that is the case then the dismissal would likely fall outside the range of reasonable responses. The tribunal here had concluded that the overall procedure followed by the employer was within the range of reasonable responses open to a fair employer. The  dismissal was fair because the appeal issues didn’t make the process unfair overall, not because it made no difference to the outcome. The EAT said the tribunal’s decision about the fairness of the dismissal was unsurprising bearing in mind the employee’s very poor attendance record, the impact of her absence on the service and colleagues and the fact that she could not return to work in the foreseeable future and, moreover, did not want to. An appeal in this case would not have served any useful purpose. 

This case is a good example of how tribunals apply different legal tests which can result in different outcomes for claims based on the same facts. The employer in this case should have allowed an extra period of time for the employee to lodge her appeal, and other employers can learn from their mistake here. It would have taken minimal time and effort to deal with the appeal – a lot less than the tribunal process which then followed. However, this case shows that a minor procedural failing will not necessarily render the dismissal process as a whole unfair, especially in extreme cases like this where the employer is both unable medically and unwilling to return to work.

Find out how we can help.  Our partner, Jon Dunkley, heads the Wollens specialist Employment Department.  Contact him today for an informal chat, without obligation on 01271 342268 or via email at jon.dunkley@wollens.co.uk.