Disability discrimination: Failure to consider part-time working meant dismissal not justified

When considering whether the dismissal of an employee on long term sick leave could be objectively justified, the tribunal should have considered whether part-time working was a less discriminatory way of achieving the employer's legitimate aim. 

Facts

In Ali v Torrosian and others (t/a Bedford Hill Family Practice), Dr Ali was on long term sick leave following a heart attack.  It was accepted that his heart condition was a disability. A medical report indicated that it was unlikely he would ever be able to return to work full-time, but advised he could return on a phased, part-time basis. He was then signed off work for six weeks due to a shoulder injury.  On the expiry of that certificate his employer dismissed him on grounds of capability.

He claimed unfair dismissal and discrimination arising from disability. The tribunal found his dismissal was unfair due to the employer’s failure to consider a return to work on a part-time basis. However it rejected his discrimination claim, finding that his dismissal was justified by the employer’s legitimate aim of ensuring that it provided the best possible care to patients.  

Dr Ali appealed to the Employment Appeal Tribunal (EAT) in relation to the rejection of his disability discrimination claim.

Decision

The EAT ruled that the employment tribunal had been wrong to find that dismissal was justified, without considering whether part-time working was a less discriminatory means of the employer achieving its legitimate aim.  Having found that the employer’s failure to consider part-time working meant his dismissal was unfair, it should have taken this factor into account when considering whether dismissal was proportionate.  Although the tests for unfair dismissal and disability discrimination are different, the factors that are relevant for determination are likely to be substantially the same.

At the date of dismissal, Dr Ali’s last sick certificate had ended and the medical advice indicated that he should be able to return on a part-time basis. The employment tribunal should therefore have considered whether the employer’s failure to consider part-time working as an alternative to dismissal meant that his dismissal was not objectively justified.     

It remitted the case to the same tribunal to reconsider this issue.        

Implications

It is important to remember that the objective justification test in discrimination cases is in two parts.  An employer has to show both that its treatment of the employee achieves a legitimate aim and that its treatment is proportionate. This means that before dismissing for long term sickness absence, employers need to consider whether there are any less discriminatory alternatives which might achieve their objective. Where the medical evidence indicates that the employee is able to return to work on a part-time basis, the employer should consider this.  If it rejects this option, it will need to be able to justify this.     

An employer is also under a duty to make reasonable adjustments before dismissing a disabled employee. Similar considerations are at play here. A failure to consider part-time working or an alternative role could also mean that the employer is in breach of its duty to make reasonable adjustments.