EAT finds errors in tribunal’s approach to reasonable adjustments and unfair dismissal

Background

In O’Brien v Cheshire and Wirral Partnership NHS Foundation Trust, the claimant was a ward manager with PTSD, anxiety and depression. Concerns were raised that she had not been present on the ward at the start of certain shifts and that she had, on one occasion, claimed overtime she had not worked. Rather than raising these concerns with her at the time, her manager began a fact-finding exercise and sought advice about potential fraud. Before anything was put to the claimant, she experienced a major health emergency which resulted in a lengthy absence from work.

When she eventually returned, the Trust initiated a formal disciplinary investigation. This process continued over an extended period and she was ultimately dismissed for misconduct. She brought claims for disability discrimination and unfair dismissal. The tribunal dismissed most of her claims, but accepted that, because her disability affected her memory, the employer should reasonably have raised the concerns informally soon after they arose. Even so, the tribunal held that this adjustment claim was out of time and also found the dismissal fair.

Reasonable adjustments

The EAT held that the tribunal had approached the time-limit question on the wrong basis. The tribunal’s reasoning focused on a different adjustment claim relating to flexible working, rather than the adjustment it had actually found meritorious - namely, the need to speak to the claimant informally at an early stage. As a result, it relied on the wrong factual context, the wrong PCP and irrelevant considerations.

The EAT also confirmed that, based on the tribunal’s own findings, any reasonable opportunity to make the required adjustment had passed once the claimant went off sick. The question now is whether it is just and equitable to extend time for the correct adjustment claim, which the tribunal must reconsider.

Unfair dismissal

The EAT also overturned the tribunal’s finding that the dismissal was fair. The tribunal had already found that the employer’s delay in raising concerns had a significant impact on the claimant’s ability to respond, that this delay was contrary to the ACAS Code, and that her disability made it harder for her to recall past events. However, when reaching its overall conclusion on fairness, it failed to engage with the seriousness of these findings and described the delay merely as “unfortunate”.

The EAT held that this reasoning was legally flawed. The tribunal had not properly considered the practical implications of the early delay, nor had it explained how the disciplinary process could still be fair in light of its own findings. The question of unfair dismissal must therefore be reconsidered, using the original factual findings as the starting point.

Learning points for employers

This decision underlines the importance of raising concerns promptly, particularly where delay may disadvantage a disabled employee. Employers need to consider at an early stage whether disability requires an adjustment to the way concerns or allegations are explored, and should not assume that formal processes months later will cure earlier procedural issues. The ACAS Code remains central to fairness assessments, regardless of the employee’s role or seniority. 

For more information or advice, please contact Rory Jutton.