If an employer dismisses a disabled employee, but fails to make a reasonable adjustment during that process, must that render the dismissal unfair?
No, held the EAT in Knightley v Chelsea & Westminster Hospital NHS Trust.
The disabled Claimant had been dismissed following a capability procedure. The employer denied her an extension of time to appeal against dismissal, which the tribunal held was a failure to make a reasonable adjustment, but the dismissal was fair overall under the Employment Rights Act 1996: on the facts, an appeal would not have affected the fairness of the dismissal. The tribunal also held that dismissal was proportionate, rejecting a s15 Equality Act 2010 claim for discrimination arising from disability.
The Claimant appealed on several grounds, including that the dismissal ought to have been held to be unfair given the failure to make a reasonable adjustment, and the lack of an effective appeal, and that the dismissal should have been held to be a breach of s15 Equality Act.
The EAT noted that it was self-evident that the legal tests involved in the three claims before the tribunal were different, the fact that an employer might fail on one of the claims does not mean that it will fail the others. Whilst a tribunal may come to legal conclusions about particular claims, what matters are drawing conclusions under each test from the tribunal's findings of fact. The legal principles applicable to each claim should be separately applied to the facts found because the ingredients of each statutory tort are different. Here, the conclusion on the reasonable adjustment claim did not depend on, or reflect, the merits of the case for dismissal or the dismissal itself or whether the appeal would have made any difference to the outcome.
Thanks to Ed McFarlane of Worknest LAW for preparing this case summary.