Disability Discrimination: Failure to consider part time working

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Disability Discrimination: Failure to consider part time working

Published 6 August 2018

The facts

Dr Ali was employed as a GP. He suffered a heart attack, and was signed off work with an ongoing heart condition. The medical information which his employer received showed that he was unlikely to work full time again, though he would be able return to part time work on a phased basis. Dr Ali emailed his employer, saying that he was fit to return, and asked for their proposals. At a medical capability meeting, he agreed with his doctor’s assessment that it was unlikely that he would ever be able to work full time. He also advised his employer that he had to take more sick leave because of a shoulder condition. There was some discussion about proposals for future adjustments to his hours and duties. The next day, he submitted a doctor’s certificate signing him off work for another six weeks because of his shoulder condition and because he was under cardiac review. Soon afterwards, his employer wrote to him, telling him that he was going to be dismissed with immediate effect, on the grounds of capability. The letter explained that the reason for this was his inability to return to work full time, and explained why the adjustments proposed to his work were not feasible.

Dr Ali claimed that he had been unfairly dismissed and that he had suffered disability discrimination. The employment tribunal accepted that his dismissal had been unfavourable treatment and that it arose in consequence of his disability. The tribunal went on to look at justification. It accepted that his employer had demonstrated a legitimate aim, which was “the need to ensure that the best possible care was provided to patients”. It considered whether the dismissal was reasonably necessary to achieve this aim. It agreed with Dr Ali’s employers, explaining that the practice had to bear some of the cost of Dr Ali’s absence, that this had caused extra work for other members of the practice, and there had been an impact in continuity of care, which is hard to maintain with locum doctors. The employers also could not recruit a permanent replacement while he was still employed. All of this, the tribunal held, impacted on patient care, and the need to provide the best possible care outweighed Dr Ali’s need to remain employed. Accordingly, the tribunal held that the dismissal was justified and not discriminatory.

However, Dr Ali had also claimed that he had been unfairly dismissed. The tribunal held that the dismissal had been procedurally unfair, saying that, “Although the partners had concluded that [Dr Ali] was unlikely to return to full time employment in the foreseeable future, there had been no meaningful consideration or consultation on alternatives to dismissal, in particular the possibility of a return to work part time.” Additionally, they should have obtained an updated medical report to ascertain the impact that Dr Ali’s shoulder condition would have on his ability to work part time.

Dr Ali appealed to the EAT. He argued that the dismissal was not a proportionate response, and that the option of part time work, rather than dismissal, was feasible and operationally possible. It was clear (he said), from the tribunal’s findings in relation to the unfair dismissal claim, that the decision to dismiss had been taken at a time when there had been no meaningful consideration or consultation on the possibility of part time working. He said that the employer was seeking to justify dismissal in circumstances in which it had been admitted that an offer of part time working would have been an alternative to dismissal.

The EAT held that, reading the judgment of the tribunal as a whole, including the unfair dismissal finding, it was apparent that part time working was a possibility. The tribunal’s failure to consider the issue of part time working, as a less discriminatory means of meeting the employer’s legitimate aim, was an error in law and meant the tribunal's decision on justification could not stand. The disability arising from discrimination claim was remitted to the same tribunal to reconsider the question of proportionality in the light of its findings that it had been possible for the employer to accommodate part time working.

What does this mean for employers?

This case does not create any new legal principles. It will come as no surprise to employers that, when taking action in relation to a disabled employee, they need to consider whether there is a less discriminatory way of achieving their aim: it will often be necessary to explore whether part time working might be an alternative to dismissing an employee who cannot work full time because of a disability.

The case is also a reminder to employers that while the tests for unfair dismissal and discrimination arising from disability are different, similar considerations apply when deciding whether an employee's dismissal following long-term sickness absence is unfair or discriminatory.

Ali v Torrosian & Ors


Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

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