Tue 28 Aug 2018

Disability discrimination and consideration of part-time working

The EAT has considered the extent to which an employer has to demonstrate that part time working was considered as an alternative to dismissal in order to successfully demonstrate justification for discrimination arising from disability.

In the case of Ali -v- Torrosian and Others, T/A Bedford Hill Family Practice the Respondent was a small GP Practice, consisting of four GP partners.  The Claimant was a doctor employed at the practice.  He suffered a heart attack and was subsequently signed-off on long term sickness.  It was accepted that he was a disabled person for the purposes of the Equality Act 2010 due to his heart condition.  The Claimant accepted, in accordance with medical advice, that he would not be able to return to work on a full time basis.  However, the medical advice stated that he could return to work part-time.  He attended a meeting with his employer.  At that stage he reported that, whilst he wished to work part-time, he was suffering shoulder pain which was going to cause him to be absent for a further period.  After the meeting, he submitted a further medical certificate for four weeks.  This cited the reasons for absence as shoulder pain and cardiac recovery.  The employer decided to terminate his employment. 

The Claimant raised a claim of unfair dismissal and discrimination arising from disability under section 15 of the Equality Act. 

It is possible for an employer to "objectively justify" discrimination arising from disability.  To succeed with this defence the employer must show that by treating the employee or worker in a particular way it is seeking to meet a legitimate aim and is using proportionate means to do so.  In considering whether the objective justification test has been met, an Employment Tribunal will look at, amongst other things, whether or not a lesser measure might have served the employer's legitimate aim.  In other words, could the discriminatory treatment (in this case dismissal) have been avoided by taking alternative steps? 

Before reaching a judgement on this an Employment Tribunal will undertake a fair and detailed assessment of the working practices and business considerations involved, having regard to the business needs of the employer.   

The Employment Tribunal considered both the unfair dismissal and the discrimination claim.  The dismissal was found to be procedurally unfair on the basis that the Respondent failed to obtain further medical evidence prior to terminating employment.  However, the Employment Tribunal only awarded a basic award and did not make any provision for a compensatory award as it found that a fair dismissal could have taken place shortly after his actual dismissal in any event.   With regard to the discrimination arising from disability claim, while the Employment Tribunal concluded that there had been unfavourable treatment, it found that the dismissal had been a proportionate way of achieving a legitimate aim - that aim being to ensure the best possible care was provided to patients. 

The Claimant appealed the finding in relation to discrimination arising from disability.  The EAT found that while the Employment Tribunal had considered the issue of part time working in the context of the unfair dismissal claim they had failed to take it into account in the context of the discrimination claim.  The evidence before the Employment Tribunal had been that part time work could have been accommodated.   The failure by the Employment Tribunal, to consider whether part time working was a less discriminatory alternative, undermined its decision that objective justification had been made out by the employer.  The case was sent back to the Employment Tribunal in order to reconsider the question of proportionality. 

This case demonstrates the need for employers to undertake a detailed analysis of alternatives to dismissal when faced with a disabled employee with long term absence.  It is important for employers to remember that it is not enough simply to identify a legitimate aim that might at first blush seem to justify dismissal - they must also consider whether their response is proportionate by considering whether there are less discriminatory ways of achieving that aim.

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