Organ Donation- do we know enough?
The case of Ali v Torrosian and others (t/a Bedford Hill Family Practice) serves as a reminder to employers that the dismissal of employees with long-term medical conditions amounting to disability should be the last resort and less discriminatory alternatives should be considered first.
Dr Ali was employed by the four partners of Bedford Hill Family Practice (the Practice). He was signed off work on long-term sickness absence having suffered a heart attack. Medical advice from the employee’s GP and treating 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 a 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 the employee’s inability to return to full-time work.
Dr Ali brought claims of unfair dismissal and discrimination arising from disability under section 15(1) of the Equality Act 2010 (the Act).
Discrimination arising from disability occurs where:
It was accepted that Dr Ali was a “disabled person” for the purposes of the Act by reason of his on-going heart condition.
The Employment Tribunal concluded that the dismissal was unfair because the Practice had failed to consider the possibility of Dr Ali’s return to work on a part-time basis as suggested by the medical report.
The Employment Tribunal rejected Dr Ali’s disability discrimination claims. They concluded that Dr Ali’s dismissal arose from his disability and amounted to unfavourable treatment, and so satisfied the first limb of the test above. However, the Employment Tribunal ruled that the Practice was able to justify the dismissal in light of the legitimate aim of ensuring that the best possible care was afforded to patients.
The Claimant appealed to the Employment Appeal Tribunal on the basis that the Employment 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.
The Employment Appeal Tribunal recognised that the Employment Tribunal had demonstrated knowledge of the test that it was required to apply in accordance with section 15 of the Act. The Employment Tribunal had reminded itself of the need to consider whether the Practice’s aim could reasonably have been achieved by a less discriminatory approach, and were aware of the requirement to balance the reasonable needs of the business with the discriminatory effect on the Claimant. However, the Employment Tribunal had not applied the test correctly. In the judgment of the Employment Appeal Tribunal, whilst the Employment Tribunal had correctly referred to the impact on the Practice of Dr Ali’s absence (such as financial and operational costs, and difficulties in maintaining continuity of patient care) it did not consider the question of whether the Practice could have addressed these issues with a part-time working arrangement. Dr Ali had provided medical evidence supporting a part time return and the Employment Appeal Tribunal considered that the absence of this factor from the Employment Tribunal’s assessment of objective justification undermined its decision.
The Employment Tribunal questioned if the Employment Tribunal had overlooked this as Dr Ali continued to be signed off as unfit to work after the dismissal. However, the Employment Appeal Tribunal confirmed that the assessment whether the decision to dismiss amounted to discrimination arising from disability had to be focussed on the date it [the dismissal] was put into effect.
The appeal was allowed and the discrimination arising from disability claim was remitted to the Employment Tribunal to reconsider the question of proportionality on the basis that it had been possible for the Practice to accommodate part-time working.
When considering their options faced with a disabled employee with long term absence, employers should ensure that they have considered all possible alternatives before taking the decision to dismiss.
Alternatives could include part-time working (as in this case); redeployment; changes in duties or location of work; additional training and support; and so on. It is important to meet with the employee to discuss any available alternatives to dismissal, and to assess the issue of reasonable adjustments with real care based on expert medical evidence. Dismissal should be the last resort, in cases where no reasonable alternative is available.
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