Daniel Barnett (Karen Jackson): “In an unfair dismissal case where the reason for dismissal was long-term ill-health absence, must an employment tribunal consider whether the employer could have been expected to wait longer before dismissing the employee?
Yes, held the EAT in Monmouthshire County Council v Harris.
The Claimant was disabled and worked partly at home. A new manager would no longer allow this, and the Claimant was dismissed following a period of absence. The employment tribunal found this to be an unfair dismissal and discrimination arising from a disability.
The EAT upheld the Respondent’s appeal, criticising the employment tribunal for failing, on the unfair dismissal point, to address the central question of whether the employer could reasonably be expected to wait longer, per BS v Dundee City Council and East Lindsey District Council v Daubney.
The decision on discrimination arising from a disability was also flawed as the employment tribunal erred in considering proportionality. The employment tribunal could consider an earlier failure to make reasonable adjustments, but only if it recognised that there was no continuing obligation to make the adjustments at the time of dismissal and took into account the up-to-date medical evidence (which provided “an uncertain and pessimistic prognosis”).