By Sara Meyer & Hilary Larter
|Published 08 October 2026
In this case, the EAT upheld an employee's claim that her redundancy dismissal amounted to discrimination arising from disability, where the employer's pleaded reason for dismissal was the employee's alleged inability to perform an alternative role that only became available after the dismissal decision had been made. The EAT also held that the employment tribunal had breached natural justice by making a 100% Polkey reduction without giving the parties an opportunity to address the issue.
Ms McLean was employed by Vallourec Oil & Gas UK Ltd (Vallourec) as a Financial Assistant. She suffered from fibromyalgia, which affected her mobility, and she worked permanently from home.
As part of a restructuring exercise in 2024, Ms McLean's role was provisionally selected for redundancy, with her duties proposed to be reallocated to the Finance Accountant (a more senior role). At her first consultation meeting, Ms McLean asked whether she was disadvantaged because she worked from home, but was told this was not relevant. At her second consultation meeting, Ms McLean was informed that her role was redundant. The dismissal decision was confirmed by letter dated 16 October 2024. Her internal appeal was unsuccessful.
Following the appeal, the Finance Accountant resigned. Vallourec decided to fill the vacancy externally because it did not consider Ms McLean capable of performing the Finance Accountant role. However, it extended Ms McLean's notice period until April 2025 in order to maintain finance operations and provide a handover to the new Finance Accountant.
An employment tribunal found that consultation had been inadequate and upheld Ms McLean's unfair dismissal claim. However, it rejected her claim of discrimination arising from disability. It also held that it was inevitable that Ms McLean would have been dismissed fairly by the time her employment ended in April 2025, effectively making a 100% Polkey reduction to her unfair dismissal compensation. Ms McLean appealed.
The EAT allowed the appeal.
On discrimination arising from disability, the EAT noted that the tribunal had accepted that the dismissal was unfavourable treatment, and that Ms McLean's need to work from home arose in consequence of her disability. The burden of proof had therefore shifted to Vallourec to show that Ms McLean's need to work from home played no role in its dismissal decision.
The tribunal had concluded that Vallourec had discharged that burden because it genuinely believed that Ms McLean lacked the skills, experience, and qualifications necessary to perform the Finance Accountant role. However, the tribunal's own findings showed that when the dismissal decision was taken in October 2024, the role was not vacant and the issue of who might fill it had not yet arisen. As such, Vallourec's belief that Ms McLean could not perform the role could not logically have been an operative cause of the dismissal decision. Vallourec had not provided any other explanation to discharge the burden of proof, and the EAT therefore substituted a finding that Ms McLean's claim for discrimination arising from disability succeeded.
The EAT also allowed the appeal on Polkey, and remitted to the tribunal for determination at a remedy hearing. Although Vallourec had pleaded Polkey, the issue was not included in the agreed list of issues or raised at the liability hearing, and determining the issue without giving the parties an opportunity to make submissions was a clear breach of natural justice.
This decision is a reminder that, in a discrimination arising from disability claim, the employer must identify the actual reason operating in the decision-maker's mind at the time the relevant decision is made. An employer cannot rely on a justification or explanation that only emerged after the unfavourable treatment occurred.
It also highlights that the duty to consider alternative employment continues throughout a potentially redundant employee's notice period. In this case, the tribunal's unfair dismissal finding was based on flaws in the consultation process, but a failure properly to consider an employee for vacancies that arise during their notice period could equally lead to a decision that a dismissal was unfair.
