This was a rehearing from an EAT decision which we reviewed in July 2020.   The issue for the EAT in that hearing was the different rules that were applied relating to capability for long-term absence and disability discrimination.  Both parties had appealed with the claimant appealing the decision to dismiss the unfair dismissal refusal and the respondent appealing the decision to uphold a claim of disability discrimination.   This was based upon some contradictory findings that were originally made by the ET.

The factual background was that the claimant worked for the respondent as a till operator since 2012.   In 2016 she suffered a shoulder injury and never returned to work.  There were a series of welfare meetings and a conversation with occupational health before the dismissal in November 2017 for capability because of the long-term absence.

In terms of the disability discrimination, the Tribunal stated that the question was whether dismissal was a proportionate means of achieving the aim that employees provided regular and reliable attendance at work.   The Tribunal took into account a range of factors including the nature of the illness which was physical, and the claimant had the potential to recover.  Furthermore, at the time of the dismissal there was a realistic possibility that there could be a recovery and she could return to work within a few months.

On the issue of proportionality, the Tribunal also examined the fact that the work could be covered by other staff and that the role was much easier to cover considering it was shift work and that it was not a specialist role.   These factors had to be weighed up against the points raised by the respondent such as the fact that the timescale originally noted was wrong and there was no fixed timescale for a return.  There was continued financial penalties such as the entitlement to holiday pay and the staff discount which she continued to use.  The Tribunal noted the difficulty in weighing up the competing arguments.   However, it was found that the dismissal was not a proportionate means of achieving a legitimate aim.   It would have been proportionate to wait for the next appointment with the consultant which was taking place in December 2017.  Accordingly, the disability discrimination claim succeeded.

On the point of unfair dismissal, the Tribunal brought together the points on discrimination and into the findings for unfair dismissal.  They found that when determining reasonableness no reasonable employer would have discriminated against the claimant on the grounds of her disability and that a reasonable employer would have waited for the outcome of the appointment in December.  Accordingly, the claim of unfair dismissal succeeded.   A separate remedy hearing was scheduled.

Practical Lessons

This case has all the hallmarks of turning into a long-running saga.  The issue with the first hearing was that the Tribunal looked at the discrimination points and unfair dismissal points entirely separately with separate tests being applied.   Whilst there is a need for a separate test, the fact that it was the same decision and the same weighing up of factors meant that divergent outcomes on the two points were illogical.  The Tribunal in this hearing has brought the two together with the disability discrimination point going to the heart as to whether the decision to dismiss was within the band of reasonable responses.  Bringing the claims together in this way does make more sense yet it may give greater rise for difficulties for employers and the difficulties that arise when a decision to dismiss on the basis of long-term absence is made.
https://assets.publishing.service.gov.uk/media/5f8eb8b9d3bf7f49a9a4f1a9/Ms_P_Stephenson_v_Iceland_Foods_Ltd_-_2405387_2018_-_Reserved.pdf