In a recent case of Ali v Torrosian and others (t/a Bedford Hill Family Practice), the Employment Appeal Tribunal (EAT) has issued a sharp warning to employers that before dismissing an employee who is suffering from a long-term medical condition which amounts to a disability, careful consideration must be given to alternatives to dismissal.
A failure to treat dismissal as a last resort may result in claims being brought both for unfair dismissal and discrimination because of something arising as a consequence of an employee's disability.
The claimant in this case – Dr Ali – was a GP employed by a local family medical practice. He was signed off on long-term sick leave following a heart attack and was advised that it was unlikely that he would ever recover fully enough to return to work on a full time basis. Instead, it was suggested that he return to part-time hours by way of a gradual phased return.
Initially, both Dr Ali and the medical practice were content for him to return on this basis; however before he could do so he was signed off sick for a further six weeks for an unrelated condition. Upon the expiry of this sick line he attempted to return to work but was advised that he was dismissed with immediate effect on the basis that he was unable to return to work on full time hours.
Mr Ali brought proceedings in the Employment Tribunal asserting that he had been unfairly dismissed and had been discriminated against under Section 15(1) of the Equality Act 2010.
The Tribunal held that Mr Ali had been unfairly dismissed. In reaching this decision they gave weight to the employer's failure to consider other alternatives to dismissal, and in particular the possibility that Mr Ali could have returned to work on part-time hours as suggested by his specialist cardiologist.
The Tribunal then turned to the discrimination point. It was accepted that Mr Ali qualified as a disabled person under the legislation as a result of his ongoing heart condition. Despite this, the Tribunal rejected the disability discrimination claim on the basis that the dismissal was justifiable in order to pursue the legitimate aim of ensuring the efficient operation of the practice for the benefit of its patients.
Dr Ali appealed to the EAT arguing that the Tribunal had not given due consideration to the need of the practice to consider other suitable alternatives to dismissal. It was argued that a less discriminatory and more proportionate approach would have been to allow Mr Ali to return in a part-time role.
The EAT recognised that while the Tribunal had correctly identified the test to be met in order to determine if Section 15 of the Equality Act had been breached, they had not applied the test correctly to the facts before them. While they had given due consideration to the impact on the practice of the claimant's absence (in relation to the financial and operational costs as well as the potential impacts on patients) they had failed to consider how these problems could have been mitigated, at least to some extent, by the claimant returning on part time hours. Had they done so, they may have concluded that this approach would have been more proportionate in all of the circumstances.
The appeal was allowed and the claim for discrimination arising from disability was remitted to the Tribunal. The Tribunal will now have the opportunity to reconsider their assessment of the proportionality of the dismissal, with due consideration given to the employer's failure to consider the possibility of part time working.
Given the potential of uncapped compensatory awards available in discrimination claims, employers should take heed from the warning issued by the EAT in this case.
When considering how to deal with an employee on long term sickness absence, dismissal may be required to be the last resort, only to be considered when all other reasonable alternatives have been explored and discounted.
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