In Ali v Torrosian and others (t/a Bedford Hill Family Practice) UKEAT/0029/18, the Employment Appeal Tribunal (EAT) considered whether the tribunal had fallen into an error of law by not considering whether the employer could have achieved its legitimate aim by other means, without the need to dismiss its disabled employee.
Dr Ali, a GP at the Bedford Family Practice (‘the Practice’), suffered a heart attack and went on long-term sick leave. Medical evidence provided that Dr Ali could return to work part-time following a phased return but confirmed that it was unlikely that he would ever be able to work full-time. Following a shoulder injury, Dr Ali was signed off work for a further six weeks. On his return, he was dismissed by the Practice by reason of capability. He brought claims for unfair dismissal and disability discrimination.
It was not disputed, in the proceedings, that Dr Ali was a disabled person for the purposes of section 6 of the Equality Act 2010.
The tribunal held that his dismissal had been unfair on procedural grounds. The Practice had failed to consider alternatives to his dismissal.
It also found that he had been subjected to unfavourable treatment (the dismissal) under section 15 of the Equality Act 2010 and that the unfavourable treatment arose in consequence of his disability. However, it considered that the Practice was able to justify the dismissal as its legitimate aim was to ensure that the best possible care was provided to patients. Dr Ali appealed against the finding in respect of disability discrimination.
The EAT held that the tribunal had incorrectly applied the test in section 15(1)(b). The test required it to consider whether the Practice could show that Dr Ali’s dismissal was a proportionate means of achieving a legitimate aim. The tribunal had correctly considered the impact of Dr Ali’s absence on the Practice, however, it had failed to consider whether the impact could be minimised by another means, other than dismissal, such as him working part-time. This could have been a less onerous way of the Practice achieving its legitimate aim. Dr Ali had indicated that a part-time arrangement would work and this was supported by medical evidence. The EAT looked at the timing of his dismissal and noted that the tribunal had found that the Practice had failed to discuss the possibility of him working part-time. This had rendered the unfair dismissal claim procedurally unfair. It followed that this also meant that the Practice had failed to consider whether part-time working would have met its legitimate aims.
In light of the tribunal’s finding that the Practice could accommodate part-time working, the case was remitted to the same tribunal to consider whether this was proportionate.
What is the significance of this decision?
This case demonstrates that whilst it may follow that where an employee has been unfairly dismissed for a failure to consider alternatives to dismissal, this course of action is also discriminatory, this will not always be the case. It will be a question of proportionality which is to be determined on the facts of the case.
If you would like to discuss any of the issues in this case, please do not hesitate to contact a member of our Employment Department.
This article is not a definitive statement of the law. It is designed as a free update on the law at the time of publishing. It is not a substitute for legal advice on specific facts and circumstances. BakerLaw LLP and/or the writer accepts no liability or responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.