Discrimination arising from Disability: Dismissal v Part-Time Working

The EAT recently overturned a decision of the Employment Tribunal in Ali v Torrosian and others and held that the Claimant had suffered discrimination arising from his disability when the Claimant’s employer (the “Respondent”) failed to consider part-time working as alternative to dismissal.

The Claimant worked as a Doctor and was employed by the Respondent from January 2011. The Claimant suffered a heart attack in late 2014 and was then absent from work for around 12 months. It was accepted that the Claimant was disabled within the meaning of the Equality Act 2010, in that the Claimant had an ongoing heart condition, which had a substantial and long term effect on the Claimant’s ability to carry out his normal day to day activities.

The Claimant provided the Respondent with a medical report, which suggested that it was unlikely that he would ever be able to return to work full-time, but that he would be in a position to return to work part-time on a phased return basis. The Respondent discussed this adjustment with the Claimant at a meeting, but he was then signed off for a further 6 weeks due to an unrelated shoulder injury. The Respondent dismissed the Claimant on the grounds of capability.

The Claimant brought claims of unfair dismissal and disability discrimination in the first instance in the Employment Tribunal. The Tribunal held that the dismissal was procedurally unfair due to the Respondent’s failure to adequately consider the possibility of the Claimant returning to work on a part-time basis.

The Tribunal, however, rejected his claim of disability discrimination. The Tribunal’s findings in relation to his claim for discrimination arising from disability were that, although the decision to dismiss the Claimant arose in consequence of his disability, it was objectively justified as a proportionate means of achieving the Respondent’s legitimate aim of ensuring the best possible patient care.

The Claimant appealed to the EAT against the rejection of his claim for discrimination arising from disability. The EAT allowed the appeal noting that although the Tribunal had considered the issue of part-time working for the purposes of the unfair dismissal claim, it had failed to consider it in the context of the disability discrimination claim, and in particular had failed to consider whether the possibility of the Claimant returning to work part-time was an alternative and less discriminatory means of meeting the Respondent’s legitimate aim.

The case was remitted back to the Tribunal to re-consider the issue of proportionality in light of the EAT’s finding that accommodating part-time working was a possibility.

This case highlights the importance for employers to consider all possible alternatives before dismissing an employee for long term absence and to give due consideration to any medical report obtained in order to assist the employer in understanding the employee’s prognosis and likely return to work. If a medical report recommends a return to work on a part-time basis, the employer must give serious consideration to this recommendation and assess whether it is a viable option.