The case of Parnell v Royal Mail Group Ltd concerned a postman/driver who had suffered from depression and anxiety since 2012. In April 2018 he received a disciplinary warning which was to stay on his record for two years. Just prior to receiving the warning the worker went on sick leave.
Royal Mail made multiple attempts to meet with the worker to discuss his return to work, however Mr Parnell had indicated that he would not return to work until the disciplinary warning was withdrawn. This resulted his being on long term sick leave.
In March 2020 he still would not return to work even though the warning was due to expire in April 2020. He stated that he wanted the warning to be withdrawn not just expired. On 15 April 2020 he was invited to a meeting to discuss adjustments that would facilitate his return. He refused to attend and was subsequently dismissed. His employer had concluded that there had been an irretrievable breakdown in trust and confidence undermining the contract of employment and that there was nothing they could do to facilitate his return to work.
Mr Parnell submitted two different claims to two different tribunals. The first claim concerned the disciplinary proceedings which led to the two-year warning. He brought various disability discrimination claims. The majority of these claims were dismissed, however the Employment Tribunal upheld that the employer had failed to make reasonable adjustments by failing to review its disciplinary outcome and failing to remove the two-year warning from the worker’s record.
The second claim concerned the absence management process and the decision to dismiss. Mr Parnell brought claims for discrimination arising in consequence of his disability, failure to make reasonable adjustments and unfair dismissal. In asserting these claims, he again relied upon the employer’s failure to review and remove the two-year warning as a failure to make reasonable adjustments, and therefore argued that this rendered the decision to dismiss unfair. The Employment Tribunal for the second claim dismissed all claims.
He appealed the decision in the second claim to the Employment Appeal Tribunal (EAT). The appeal grounds were that the tribunal in the first claim had found that he was close to returning to work and would have returned had it not been for the employer’s failure to review and remove the two-year warning as a reasonable adjustment. He therefore argued that it was inconsistent for the tribunal in the second claim to not consider this failure to make a reasonable adjustment when assessing whether his dismissal was discriminatory or unfair.
The EAT dismissed his appeal. The EAT held that the tribunal in the second claim had had appropriate regard to the decision of the tribunal in the first claim but had to make its own decision on the evidence put before it in relation to the claims it was assessing. The EAT therefore held that it was acceptable for the tribunal in the second claim to find that it was not reasonable for the employer to withdraw the two-year warning as an adjustment, and that there would have been no reasonable adjustments that would have enabled the worker to return to work and therefore avoid the decision to dismiss him.
When considering the discrimination arising from disability claim (section 15 of the Equality Act), the EAT held that the tribunal in the second claim had failed to adequately explain its finding that the dismissal did not amount to unfavourable treatment. The EAT also held that the tribunal in the second claim had failed to apply the correct approach when determining whether the ‘something’ that had led to the dismissal arose in consequence of disability.
The EAT stated that the employee’s actions may have been connected to his anxiety, and also stated that the ‘something’ arising from the disability does not need to be the sole or main reason for the unfavourable treatment. However, ultimately the EAT found that the decision to dismiss the worker could be justified as a proportionate means of achieving a legitimate aim. The employer had the legitimate aim of requiring a regular and reliable workforce and ensuring that workers on long-term sickness absence did all they could to meet with managers to discuss a return to work. The worker had been absent for two years with no foreseeable return and had made demands that were unrealistic and unachievable as a condition of returning to work.
This case serves as a useful reminder that, whilst employment tribunals should give due consideration to decisions taken by other tribunals relating to the same dispute, ultimately they are required to assess the allegations of the case put before them using the evidence provided to them. Tribunals are also required to apply specific and separate legal tests when assessing different legal claims. This may mean that whilst a discrimination claim which relates to a dismissal is upheld, an unfair dismissal claim relating to the same dismissal may be dismissed because unfair dismissal claims are assessed using a separate legal test.
In this case, the EAT took into account that the employee had been on sick leave for two years, and the employer had made reasonable steps to facilitate a return to work before making the decision to dismiss. It therefore found that the employer had acted reasonably in dismissing the worker, and that the decision to dismiss was proportionate to protect a legitimate need of the business.
This blog was written by Yavnik Ganguly, Solicitor at didlaw.
