The employee, in this case, was at the material times disabled. After a series of absences, adjustments being made to her work and then following capability proceedings she was eventually dismissed.
Following her dismissal she brought disability discrimination claims and a claim for unfair dismissal.
She argued that she had been discriminated against, in being dismissed, as she had been treated unfavourably because of her disability and also alleged that there had been a breach of the duty to make reasonable adjustments.
The tribunal dismissed her claim that she had been treated unfavourably saying that dismissal was proportionate because the employee was unfit for her role and likely to remain so for the foreseeable future. The tribunal, however, expressed reservations about that conclusion, which it regarded as closely connected to the issue of reasonable adjustments.
The employee argued that there were seven adjustments that could have been made. On the facts of the case the tribunal found that most of these suggested adjustments were not reasonable adjustments or not adjustments at all.
In relation to two of the suggested adjustments the tribunal, following an earlier decision of the Employment Appeal Tribunal in a separate case which related to comparators when determining claims for breach of the duty to make reasonable adjustments, dismissed the employee’s remaining claims. The tribunal was bound to follow that decision, although it did indicate that it did not agree with it. The decision was later found by the Court of Appeal to have been in wrongly decided.
The tribunal also dismissed the unfair dismissal claim. In doing so it said that as the discrimination claims had failed, the unfair dismissal claim must also fail.
The employee appealed to the Employment Appeal Tribunal.
The Employment Appeal Tribunal said that in light of the Court of Appeal’s decision part of the disability discrimination claim might have been decided differently and, therefore, it remitted the case to the same tribunal for reconsideration in light of the Court of Appeal’s decision.
The tribunal will now have to reconsider whether the two of the suggested adjustments affected by the Court of Appeal decision were reasonable adjustments or not. It will also have to reconsider whether dismissal was a proportionate means of achieving the legitimate aim of having an effective workforce or whether she should have been redeployed by way of a reasonable adjustment to her work.
In relation to the unfair dismissal claim, the Employment Appeal Tribunal said that the tribunal had been wrong in failing to consider the employee’s unfair dismissal claim independently of her claims for disability discrimination.
The tribunal, it said, was wrong to proceed on the footing that the unfair dismissal claim stood or fell with the discrimination claims.
Dismissal, it said, for a discriminatory reason is not necessarily unfair; whether it is or not depends on application of the tests in section 98 of the Employment Rights Act 1996, which are different from the tests applicable to claims under the Equality Act 2010.
The unfair dismissal claim has, therefore, also been remitted for reconsideration by the tribunal.
Case reference: Perratt v The City of Cardiff Council