Services
People
News and Events
Other
Blogs

Employment Law Case Update: Disability Discrimination and Dismissal

View profile for Employment Team
  • Posted
  • Author

As employers, it's vital that you follow your own procedures should you need to take an employee through a disciplinary or dismissal.  Our Employment Law team today discusses the case of Mr D Walker v Old Swinford Hospital School which reviews disability discrimination and dismissals.

Mr Walker worked as a technician for Old Swinford Hospital School from June 2014 until his dismissal in September 2017. Mr Walker had two disabilities, psoriatic arthritis and depression and anxiety, which caused him to be absent for periods in 2016 and 2017.

In February 2017, Mr Walker’s medication was changed and his absences became more frequent. This prompted a referral to Occupational Health. The OH representative assessed Mr Walker and recommended that he be restricted from using dangerous equipment until his medication stabilised, which was expected to take about four weeks. This was the only assessment of Mr Walker conducted by OH.

The school did not consider any reasonable adjustments to Mr Walker’s role as a technician, nor did it consult him on any adjustments he might require. 

At the end of March 2017, the decision was made to remove Mr Walker from his role, but this decision was only first communicated to Mr Walker in July 2017.

The school offered Mr Walker two alternative roles, which he rejected for several reasons, including their reduced salary and concerns regarding their suitability. Mr Walker asked for clarification regarding the duties of these roles, but the school failed to answer any questions or discuss any further adjustments. 

A dismissal meeting was arranged for 25 September 2017, then rescheduled for 28 September after Mr Walker was signed off sick with stress “due to the events of the school’s threat to terminate” his contract. Still too ill to attend the rearranged meeting, Mr Walker asked that it be delayed again. This was refused and no formal dismissal meeting took place, which meant the school failed to follow its own disciplinary policy.

After unsuccessfully appealing his termination, Mr Walker launched a claim with the Employment Tribunal (ET), alleging disability discrimination and unfair dismissal.

The ET found that the school did discriminate against Mr Walker by failing to make reasonable adjustments. Reasonable adjustments would have allowed Mr Walker to stay in employment; therefore, his dismissal was discriminatory and incapable of being justified by a legitimate aim.

Regarding the unfair dismissal claim, the ET had to consider whether the decision to dismiss was within the “band of reasonable responses” to Mr Walker’s long term illness. The ET concluded that it was not. In deciding to dismiss Mr Walker the school failed to take into account that his attendance had improved, that the restrictions on his duties were temporary, and that he had already returned to using hazardous machinery. The school did not conduct an investigation, issue a warning, or implement an improvement plan. Further, the ET found that “the appeal process was little more than an attempt to look like a correct procedure was being followed”.

As a result of this case, Old Swinford Hospital School had to pay Mr Walker approximately £117,000 in compensation. The ET ordered the school to pay Mr Walker an award of £85,829 which included loss of earnings and injury to feelings. A further £31,184 was agreed in a settlement for the outstanding pension losses. 

This case reminds employers not to ignore their own disciplinary and dismissal procedures. Following proper procedures ensures that employees are treated fairly and helps protect against future claims. Employers who dismiss without following a fair procedure will have a much harder time convincing a tribunal that the dismissal was reasonable, especially if the employee in question has a protected characteristic. Had the school undergone a proper procedure, reasonable adjustments may have been identified that would have allowed Mr Walker to remain in employment, avoiding a costly tribunal case.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

This was previously part of our weekly Employment Law Newsletter. If you would like to subscribe, please email us at events@warnergoodman.co.uk or just fill in our subscription form.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.