The Employment Appeal Tribunal (EAT) has reaffirmed the importance of properly determining the reason for a dismissal before deciding whether or not, in dismissing an employee, the employer has treated them unfavourably because of something arising in consequence of a disability.
The Claimant, Mr Mohammed, was issued with a final written warning for aggressive behaviour. Shortly afterwards, he was signed off work with anxiety and depression. Whilst on sick leave, and on the advice of his GP, he travelled to Pakistan for a “therapeutic” holiday. The parties disagreed as to whether the Respondent had granted permission for the trip.
The Respondent received Occupational Health advice that the Claimant was fit to return to work. When attempting to contact the Claimant to discuss his return to work, the Respondent was informed that he was in Pakistan. Following a disciplinary process, the Claimant was summarily dismissed for misconduct (a live final written warning being in place for the aggressive behaviour).
The Claimant brought claims for unfair dismissal and discrimination arising from a disability. At first instance, the Tribunal found in the Claimant’s favour. It determined that “but for” his disability he would not have gone to Pakistan, and would not have therefore been dismissed. The Respondent appealed. The grounds for its appeal included that (1) the Tribunal had incorrectly applied the test for discrimination arising from a disability; and (2) the Tribunal had substituted its own decision for that of the employer when determining whether the dismissal was fair.
The EAT upheld the appeal. It found that the Tribunal had incorrectly applied the law. It was not simply a question of whether “but for” the Claimant’s disability he would not have travelled to Pakistan, and so would not have been dismissed. The Tribunal was required to make a finding as to why the Claimant had been dismissed, and then in that context determine whether the Claimant’s dismissal was “something” arising in consequence of his disability. The Tribunal had not sufficiently explored what was in the dismissing officer’s mind at the time he made the decision to dismiss. As a result it had not been able to properly consider whether the dismissal was because of “something” arising in consequence of his disability. The EAT also agreed that, in determining the unfair dismissal claim, the Tribunal had substituted its own decision for that of the Respondent.
The case has been remitted back to a fresh Tribunal for a new hearing.
Implications for employers
The EAT’s decision makes clear the correct application of the law on discrimination arising from a disability. It is important, before dismissing a disabled employee, for an employer to consider carefully its reasons for contemplating dismissal. To identify the risk of proceeding with the dismissal, it should then consider whether or not any of those reasons might be “something” arising in consequence of the employee’s disability.
Whilst the claim may well have still arisen, it probably would not have got to an appeal if the Respondent had been clear about its reasons for dismissing in the disciplinary outcome letter. Employers should usually ensure their reasons are very clear. Failure to do so can leave the door open for ambiguity.
It is important to note that this case has been remitted to a different Tribunal, and so it is possible that the Claimant’s claims will still succeed when the correct tests are applied.