Will a failure to make reasonable adjustments leading up to the dismissal of disabled employee make their dismissal unfair?

Will a failure to make reasonable adjustments leading up to the dismissal of disabled employee make their dismissal unfair?

A failure to make reasonable adjustments leading up to the dismissal of a disabled employee will not necessarily make their dismissal unfair. The Employment Appeal Tribunal (EAT) decided this in Knightley v Chelsea Westminster Hospital NHS Trust.

Mrs Knightley was employed by Westminster Hospital NHS Foundation Trust as a Lead Midwife for Mental Health from February 2009. She had been suffering with stress, anxiety and depression from around 2007 which affected her attendance at work. Mrs Knightley was dismissed on grounds of capability on 5 April 2018. Mrs Knightley was informed she had 10 days to appeal this decision. 13 days later she asked for an extension and submitted a three line appeal a week later. Her employer did not consider the appeal on the grounds that “it was out of time”.

Mrs Knightley brought several claims against her employer including for their failure to make reasonable adjustments, unfair dismissal, and discrimination arising from disability.

The Employment Tribunal (ET) held that her employer should have made adjustments by allowing Mrs Knightley more time to appeal the decision to dismiss her and awarded her £3,000 for injury to feelings for their failure to make reasonable adjustments. Her other claims were dismissed. 

Mrs Knightley appealed this decision on several grounds. 

  1. that if the ET found that it was reasonable to allow for an extension to appeal then it ought to have led to her other claims succeeding,
  2. that the ET had not sufficiently explained how her dismissal could be fair or proportionate given this finding, and/or
  3. that the ET had wrongly relied on its finding that her appeal would not have been successful in any event (on the basis that this is something that would ordinarily be dealt with by reducing the compensation awarded).

The Employment Appeal Tribunal (EAT), dismissing her appeal, held that the ET had appropriately applied the legal tests required for each claim.  Even though the EAT considered that her employer should have allowed Mrs Knightley more time to appeal the decision, in the circumstances it did not mean that her other claims should succeed.

In respect of the claim for discrimination arising from disability, Mrs Knightley’s employer accepted that the capability proceedings and the dismissal amounted to unfavourable treatment which arose out of her disability (i.e., her attendance record). Mrs Knightley accepted her employer had a legitimate reason for dismissing her. The outstanding question for the ET to consider was therefore whether the treatment was a proportionate means of achieving an legitimate aim. The EAT decided that, in these circumstances, it was, so Mrs Knightley was unsuccessful.

You can read the full judgment here.

This blog update was written by Jo Sinclair, Solicitor at didlaw.