Unfair dismissal and disability discrimination: Making reasonable adjustments to the dismissal process

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Unfair dismissal and disability discrimination: Making reasonable adjustments to the dismissal process

Published 9 mayo 2022

The EAT has held that the dismissal of a disabled employee was not unfair in spite of the fact that the employer had failed to make reasonable adjustments to the dismissal process.

THE FACTS

Ms Knightley was employed by Chelsea and Westminster Hospital NHS Foundation Trust as a Lead Midwife for Mental Health. Her role involved dealing with vulnerable patients, high risk pregnancies and other complex cases, and was patient facing as well as concerned with internal management.

Ms Knightley suffered from stress, anxiety and reactive depression. Because of her health, her attendance was poor, in spite of adjustments made to her working arrangements.  She had two long periods of sickness absence, both of which were managed under the hospital’s sickness absence procedure, which included OH advice and review meetings. The impact of Ms Knightley’s absence on the service to the public gave rise to serious concerns about the welfare of patients.  

In an OH appointment, which took place when she had been absent for about six months during the second long period of sickness absence, Ms Knightley made clear that she did not consider that she would be able to return to work in the foreseeable future, that there were no steps which the hospital could take to enable her to do so, and that she wished to apply for ill health retirement. She reiterated this view at a long term sickness absence hearing, following which she was dismissed. She asked for an extension to the ten day period which she had been given in which to bring an appeal. This request was refused, apparently because it was seen as part of a pattern of behaviour by Ms Knightley. She submitted a three line summary appeal outside the ten day period, which was not considered because it was out of time.

Ms Knightley claimed in the employment tribunal that she had suffered discrimination arising from a disability, she had been unfairly dismissed, and that her employer had failed to make reasonable adjustments because (among other things) it had not allowed her an extension of time to lodge an appeal against her dismissal.

The employment tribunal upheld the claims of failure to make reasonable adjustments in relation to the extension of the appeal deadline, and awarded £3,000 for injury to feelings. In making this finding, the tribunal emphasised that it would not have found it likely that the appeal would not have been upheld even if it had accepted it late. The tribunal found that Ms Knightley’s dismissal was fair and proportionate, and therefore dismissed the claims of unfair dismissal and discrimination arising from a disability.

Ms Knightley appealed to the EAT. She argued (among other things) that the finding that the employer had failed to make reasonable adjustments, in that it had denied her an extension of time to appeal her dismissal, ought to have led to her other claims succeeding.

Dismissing her appeal, the EAT commented that the legal tests for the three claims (unfair dismissal, discrimination arising from a disability, and failure to make reasonable adjustments) are different. While findings of fact might be relevant to all three claims, the legal principles applicable to each of the claims should be separately applied to the findings of fact.  

WHAT DOES THIS MEAN FOR EMPLOYERS?

Employers should be wary of rigidly enforcing deadlines in dismissal and appeal procedures, particularly where the employee suffers from a disability. If they decide to refuse a request to extend deadlines for a reasonable period, employers must make sure that they have very good reasons for this decision, or they will be at risk of successful disability discrimination and unfair dismissal claims.

Ms C Knightley v Chelsea and Westminster Hospital NHS Foundation Trust

Authors

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

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