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In the recent case of Knightley v Chelsea & Westminster Hospital NHS Trust, the Employment Appeal Tribunal (EAT) considered whether the dismissal of a disabled employee should be rendered unfair if the employer failed to make reasonable adjustments during the dismissal process. The EAT held that this did not constitute an unfair dismissal.
Section 6 of the Equality Act 2010 defines a disability as a physical or mental impairment, which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.
The duty to make reasonable adjustments under Section 20 Equality Act 2010 arises where an employee or job applicant meets the definition of disability, and is placed at a substantial disadvantage in comparison to individuals who are not disabled. A substantial disadvantage can result from any provision, criterion or practice, any physical features of the work place, or the prevention of access to an auxiliary aid where such access would place them on an equal footing. In these circumstances, employers must take such steps as it is reasonable to have to take to avoid the disadvantage.
In this case, the disabled Claimant was dismissed by her employer following a capability procedure. After her dismissal, her employer denied her an extension of time to appeal against the decision to dismiss.
The ET held that the employer had failed to make a reasonable adjustment to its procedure when dismissing the employee, in not allowing her an extension of time to lodge an appeal against her dismissal. However, it found that the dismissal itself was fair and proportionate, and therefore her claims for unfair dismissal and discrimination arising out of disability (contrary to section 15 Equality Act 2010) failed. The Claimant appealed this decision.
The EAT dismissed the Claimant’s appeal. It was held that the legal tests involved in each of the claims before the Tribunal were different, and so even if an employer fails to successfully defend one of the claims, this does not mean that it will inevitably also fail in successfully defending the others. Whether, and to what extent, any failure by an employer to make a reasonable adjustment impacts on the fairness of an employee’s dismissal will depend on the relationship between the adjustment in question and the dismissal.
In this case, the ET had found that, notwithstanding the fact that the Claimant had not been given an extension of time to appeal against her dismissal, her dismissal for capability reasons was both substantively and procedurally fair, and within the range of reasonable responses available to the employer in all the circumstances. The EAT agreed with this conclusion, and held that the ET’s reasoning behind it had been more than sufficient.
Despite the finding in this case that the Claimant’s dismissal was fair for the purposes of the Employment Rights Act 1996, the fact remains that the employer was still found to have failed to make an adjustment to its dismissal process which would have been reasonable, pursuant to the Equality Act 2010. This case therefore serves as a reminder to employers to ensure that they are always giving sufficient consideration to the duty to make reasonable adjustments within the workplace, and that this duty applies just as much during any recruitment or dismissal procedures, as it does at any other time. Employers should anticipate any potential issues which their disabled employees may be disadvantaged by, and proactively seek to provide adjustments to place all employees on an equal footing.