Long-term sickness absence and failure to consider part-time working

Ali v Torrosian (t/a Bedford Hill Family Practice)

An employer seeking to justify its discriminatory dismissal of an employee on long-term sick leave should have considered part-time working.

Background

Dr Ali was employed by the four partners of Bedford Hill Family Practice. He was signed off work on long-term sickness absence having suffered a heart attack. The practice accepted that he was disabled. Medical advice from Dr Ali’s GP and cardiologist indicated that it was unlikely that he would ever be able to return to work full time but suggested he could return to part-time work on a phased basis. Having indicated that he was fit to return on this basis, Dr Ali then suffered an unrelated shoulder injury and was signed off work for a further six weeks. At the end of the six weeks he was dismissed by the practice with immediate effect. This was based on his inability to return to full-time work (i.e. an ill-health capability dismissal). He brought claims of unfair dismissal and disability discrimination.

A tribunal held that the dismissal was procedurally unfair because of the employer’s failure to get up to date medical advice or consider the recommendations of a medical report which advised that he could return to work on a part-time basis. However, for the purposes of s.15 of the Equality Act, it concluded that although the dismissal also constituted ‘unfavourable treatment’ arising in consequence of Dr Ali’s disability, it was justified as a proportionate means of achieving a legitimate aim as the employer had a legitimate aim of ensuring that the best possible care was provided to patients. Dr Ali appealed on the basis that the tribunal had been wrong in concluding the dismissal was a proportionate response in light of the fact there was a less discriminatory and more proportionate approach than dismissal: part-time hours.

EAT decision

The EAT allowed his appeal.

Although the tribunal had considered the issue of part-time working for the purposes of the unfair dismissal claim (where it recorded that the employer had accepted this had been a possibility), it had failed to consider it in the context of the disability discrimination claim, and in particular had failed to consider whether the possibility Dr Ali returning to work part time was an alternative and less discriminatory means of meeting the employer’s legitimate aim.

Dr Ali had provided medical evidence supporting a part-time return and the EAT considered that the absence of this factor from the tribunal’s assessment of objective justification undermined its decision.

The discrimination arising from disability claim was remitted to the tribunal to reconsider whether the employer’s decision was a proportionate means of achieving the legitimate aim of ensuring the best possible care for its patients, particularly in light of its finding in the unfair dismissal case that it had been possible for the employer to accommodate part-time working.

Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2018/0029_18_0205.html

Comment

Any proposed dismissal for ill-health capability should always be supported by up-to-date medical evidence and involve discussions with the employee to talk about any other roles or other alternatives. If an employee has been off long term, then it is more likely than not they will be deemed to be disabled. Even if you have a legitimate aim (and here the employer did), proportionality will be key. Ask yourself if dismissal is the only means of achieving your aim or are there less radical alternatives. These might include part-time working (as here and as indicated by the expert reports), additional training and support, or a change in duties (although there is no obligation to create a role). Make sure you evidence your consideration of any such alternatives and, if you reject them, your reasons for doing so.