Dentons associate Amy Gordon discusses the correct approach to dismissing an employee.
amy.gordon@dentons.com
IN Cummins Ltd v. Mr W Mohammed, the Employment Appeal Tribunal (EAT) has reaffirmed the importance of properly determining the reason for dismissal, particularly when there is potential disability discrimination. Amy Gordon, an employment lawyer at Dentons UK and Middle East LLP, considers what this case will mean for employers.
What were the key facts of this case?
The Claimant was signed off work with stress and anxiety and was advised by his GP that he may benefit from taking a therapeutic holiday. He subsequently went on a trip to Pakistan, but it was disputed whether this was ever communicated and agreed with the employer.
During his trip, the Claimant’s manager invited him to discuss his latest medical report which recommended that he was fit to return to work. The Claimant was unable to attend this meeting and, when the employer learnt of the Claimant’s holiday, it brought disciplinary proceedings against him which resulted in summary dismissal.
What claims did the employee bring against his employer?
The Claimant brought two separate claims against his employer: unfair dismissal and disability discrimination under s.15 of the Equality Act 2010 (the 2010 Act).
Section 15 of the 2010 Act provides that an individual will be discriminated against on the grounds of disability if they are treated unfavourably because of “something arising in consequence of their disability”.
What did the tribunals decide?
The Employment Tribunal (ET) upheld the Claimant’s claims. It applied the “but for” test, reaching the conclusion that, but for his disability, the Claimant would not have taken a therapeutic holiday and would therefore not have been dismissed. The employer appealed this decision on the basis that this was the wrong test for the ET to apply.
The EAT upheld the appeal, making the following important findings:
• It was not simply the case that “but for” the Claimant’s disability he would not have been dismissed. The ET should have first determined the employer’s exact reasoning for dismissing the employee. Only after the reasons for dismissal have been identified could the tribunal then decide whether they were in any way connected to the employee’s disability.
• The ET had wrongly substituted its own decision for that of the employer and, in doing so, had failed to follow the correct legal test for establishing an unfair dismissal. To determine whether a dismissal for misconduct is fair, the ET is required to: (i) establish the misconduct upon which the employer is relying; (ii) consider whether the employer had genuine belief that the employee was guilty of the misconduct; and (iii) consider whether the decision to dismiss fell within the range of reasonable responses of an employer. In this case, the ET failed to address these points and so the case has been remitted to a fresh tribunal for a new hearing.
What does this mean for employers?
You should think very carefully about your reasons for deciding to dismiss an employee who may be disabled. To identify whether this may be a high-risk dismissal, you should also consider whether any of the reasons for dismissal may be connected to the employee’s disability. This reasoning should be clearly recorded and explained to the employee and confirmed in a dismissal letter.
A clear and accurate paper trail will be invaluable evidence if the employee later decides to challenge the dismissal.
This case has been remitted to a different tribunal, so it is possible that the Claimant’s claims will still succeed when the correct tests are applied.
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