Facts
In Monmouthshire County Council v Harris, Ms Harris ('H') worked as a local authority Senior Education Welfare Officer. She was disabled for the purposes of the Equality Act 2010 and, following Occupational Health input, she adopted a pattern of working from home. In 2010, H's line manager changed to Mr Austin. This lead to various issues which came to a head in 2013 when H complained that Mr Austin was not supporting her working patterns and she went off work sick, never to return. Following her dismissal for capability reasons in May 2013, H sought another Occupational Health report in support of her application for ill health retirement. The report confirmed that she was unfit to work (although did not confirm that she was permanently incapacitated).
The ET found that the dismissal was unfair and amounted to discrimination arising from a disability.
Decision
In overturning the ET's decision, the EAT confirmed that the ET had not taken the correct approach in respect of both the finding of unfair dismissal and disability discrimination.
In terms of the unfair dismissal claim, the ET should have considered whether the employer could reasonably be expected to wait longer for the employee to return to work. The ET was entitled to criticise the Council, as it did, on a number of procedural shortcomings. However, it should have not have only looked at past failings, but also the pressure it faced at present and in the future in order to assess whether, in all of the circumstances, dismissal was in the range of reasonable responses.
In terms of the discrimination claim, the employer had a legitimate aim to safeguard the public funds and consider its health and safety obligations towards H's colleagues. The ET should have considered whether the dismissal was a proportionate means of achieving this legitimate aim. This included considering the up to date medical report, which gave an 'uncertain and pessimistic prognosis' of H's ability to return to work. The ET's assessment should not have focussed, as it did, on the Council's earlier failures to put in place reasonable adjustments.
Best Practice
Whether a decision to dismiss an employee on long term sickness absence is reasonable and proportionate will always depend on the facts of each case. How long employers should wait before dismissing depends on the specific circumstances and employers need not necessarily wait until the employee is deemed permanently unfit to work. Employers should take care to consider all of the relevant factors, including up to date medical information, and document the process appropriately before taking a decision to dismiss.
For more information, please contact Charlotte Williams in our Employment Law team on 0117 314 5219.