Tue 25 Feb 2020

Disabled employee who was not absent fairly dismissed

The point at which it is reasonable, fair and non-discriminatory to dismiss a disabled employee can be difficult to identify.

When a disabled employee is keen to remain in work, engaged in the process of looking for adjustments and alternatives and still carrying out a number of workplace duties, taking the decision to dismiss is all the more problematic.  But the duty to make adjustments is restricted to what is reasonable, and businesses need to operate profitably.  Identifying at exactly what point enough has been done is not easy.  The case of Shah v TIAA Ltd demonstrates how a full and frank consultative process contributes to fair and discrimination free decision making.

In Shah, the EAT upheld the decision of an employment tribunal that the employer had done enough for a dismissal to be fair and non-discriminatory even though the employee was not absent from work.  She was though failing to meet her "chargeable day" targets - something she had to do to make her continued employment financially viable.

It was accepted by all parties that Ms Shah’s long standing back condition rendered her a disabled person.  Her role was client facing – she required to travel to client’s premises to audit them and then report on that.  Her ability to carry out the auditing work was essential to the profitability of her role. 

Following a shoulder injury while on holiday Ms Shah's employer organised an occupational health assessment and began the process of discussing both her failure to meet targets and her health.  The OH report identified arthritis and recommended limiting travel but did not address the long term prognosis.  Other adjustments such as work station assessments were undertaken.  Homeworking was rejected as it was necessary to attend clients' premises to carry out the audits.  Redundancy was rejected as the role had not disappeared, it was simply that Ms Shah was unable to do it.  Although one client requested Ms Shah be removed from their account at around the same time as theses discussions were ongoing, had she been able to travel there were other clients she could have worked for.

Discussions took place over a number of months during which both parties contributed and various options were considered.  Ms Shah was accompanied by a trade union representative.  She suggested her chargeable target be reduced, but without a reduction in pay - not surprisingly that was rejected as it would have resulted in her employer making a loss on her employment.  She was not offered part time work with a corresponding pay cut, nor did she request it.  She did however describe her condition as worsening as time went on.  A decision was taken to dismiss Ms Shah and her appeal against that was unsuccessful. 

Ms Shah's claims of unfair dismissal and disability discrimination were dismissed by an employment tribunal and the EAT subsequently dismissed an appeal against that decision.  Even though Ms Shah could have continued to carry out work based from home, and despite the fact that part time working wasn't offered and the OH report was not updated to include a longer term prognosis, the tribunal was satisfied that the employer's duty to make reasonable adjustments had been met.  Continuing to employ her and suffering a financial loss as a consequence could not be considered to be reasonable.

While it may have been possible to conclude discussions on Ms Shah's employment in a shorter timescale than happened in this case (the period from occupational health report to dismissal was around 6 months) the employer was able to demonstrate a consultation process that involved reasonable adjustments being made, unreasonable ones being rejected and the full involvement of Ms Shah (and her representative) in the process.

Following a full and reasonable procedure provides an employer with the best chance of defending any legal challenge. What also shouldn't be overlooked is the fact that most people charged with making these decisions don't enjoy having to dismiss employees - doing it correctly does though allow the decision makers to walk away knowing all reasonable options have been considered.

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