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Failure to Consider Part-Time Working Prevents Objective Justification of Discrimination Arising from Disability

on Friday, 13 July 2018.

In the case of Ali v Torrosian and others (t/a Bedford Hill Family Practice), Dr Ali successfully appealed to the EAT against a decision that the GP practice in which he had worked had not discriminated against him by dismissing him on capability grounds.

Background

Dr Ali had suffered a heart attack and had been absent from work for around 12 months, and the Practice accepted that he was disabled within the meaning of the Equality Act 2010. Dr Ali provided the Practice with a medical report which suggested that it was unlikely that he would ever be able to return to work full-time, but that he would be in a position to return to work part-time on a phased basis. This possibility was discussed with Dr Ali at a meeting, but he was then signed off for a further 6 weeks due to an unrelated shoulder injury and the Practice dismissed him on the grounds of capability.

Dr Ali brought claims of unfair dismissal and disability discrimination. The Tribunal held that the dismissal was procedurally unfair due to the Practice's failure to adequately consider Dr Ali returning to work on a part-time basis; but rejected his claims of disability discrimination finding, in relation to his claim for discrimination arising from disability, that although the decision to dismiss arose in consequence of his disability, it was objectively justified as a proportionate means of achieving the Practice's legitimate aim of ensuring the best possible patient care.

Dr Ali appealed against the rejection of his claim for discrimination arising from disability and the EAT allowed the appeal; noting that although the Tribunal had considered the issue of part-time working for the purposes of the unfair dismissal claim (when the ET recorded that the Practice had accepted this had been a possibility), it had failed to consider it in the context of the disability discrimination claim, and in particular had failed to consider whether the possibility Dr Ali returning to work part time was an alternative and less discriminatory means of meeting the Practice's legitimate aim.

The EAT remitted the case to the Tribunal for reconsideration on the issue of proportionality in light of its finding that accommodation of part-time working was a possibility.

Best Practice

This case provides a useful reminder that, before dismissing for long term absence, employers should consider all possible alternatives and assess their viability, or they could find that the dismissal is not only unfair, but also discriminatory. A reduction in hours may often be a possible alternative to terminating employment and something that employers ought not only to consider, but also ensure that they can evidence their consideration of, and any reasons for rejecting the possibility.


For more information please contact Lorna Scully in our Employment Law team on 0121 227 3719.

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