The claimant worked for the respondent supermarket as a till operator since 2012.   In December 2016 the claimant suffered a shoulder injury in an incident unrelated to her work.   As a result of the injury, the claimant never returned to work but was invited to numerous welfare meetings between February and November 2017 and had one telephone conversation with occupational health.    The respondent dismissed the claimant as a result of the long-term absence.  The claimant brought claims for both unfair dismissal and disability discrimination.  It was agreed that the claimant was disabled within the meaning given to it in the Equality Act 2010 (Disability Discrimination Act 1995 in NI).

The ET found that the dismissal was fair with capability being the accepted reason.    However, when it came to disability discrimination it found in the claimant’s favour citing that there was unfavourable treatment arising from the disability as required under Section 15 of the Equality Act 2010.   Both parties appealed the finding of the ET with the claimant stating that there should have been unfair dismissal found and the respondent refuting the disability discrimination finding.

The EAT stated that whilst it was possible to have disability discrimination without unfair dismissal as arising from the same set of facts, it was not a desirable element in the law.  There was reference to the decision of Underhill LJ in O’Brien v Bolton St Catherine’s Academy (2017) when he stated that it would be a pity for a distinction to arise between dismissals for long-term sickness and disability discrimination for the same sickness.  The EAT allowed both appeals.  In terms of the disability discrimination it was held that the ET had erred in law by only looking to the mind of the decision maker rather than the justification that was advanced at the hearing.   The unfair dismissal appeal was allowed with the EAT outlining that there were ‘contradictory’ findings from the ET in terms of both the disability discrimination and the unfair dismissal elements.  For this reason, there was a need to call into question the decision that had been made and the appeal was allowed with the case remitted to a new ET - a review of which is available here.

Practical Lessons

This case demonstrates the difficulties that can occur when long-term absence arising from a sickness/disability can lead to accusations of an unfair dismissal and disability discrimination.  The fact that a distinction has arisen in the law in this area makes it extremely difficult for employers and Tribunals alike to navigate.   Employers should be cognisant of ensuring that any dismissal falls within one of the ‘fair’ reasons and that it is reasonable but must also ensure that it is not giving less favourable treatment as a result of any disability without objective justification.
https://www.gov.uk/employment-appeal-tribunal-decisions/iceland-food-ltd-v-ms-p-stevenson-ukeat-0309-19-rn