Disability Discrimination: Retirement on ill health grounds

In Tameside Hospital NHS Foundation Trust v Mylott, the EAT considers that an employer had not failed to make reasonable adjustments when it did not facilitate a disabled employee’s application for ill health retirement.  In respect of the employee’s long term absence and his grievance concerning bullying and harassment, the EAT found that the employer was not liable to pay aggravated damages.Mr Mylott was employed by the Trust as a finance manager until 2007.  He raised a grievance, which was not resolved before he was dismissed on capability grounds.  The grievance named Miss Holroyd, his senior manager.  Despite this link, she was very closely involved in handling the complaint.  In November 2006, Mr Mylott was given notice of his dismissal and she was told that if he wanted to take ill health retirement then he must speak with HR/Occupational Health.  Mr Mylott complained, amongst other things, that it would have been a reasonable adjustment to assist Mr Mylott with his application for ill health retirement.  The ET also awarded aggravated damages against the Trust as they found that Miss Holroyd, his senior manager, acted in a high handed and malicious manner.  The EAT disagreed with both of these findings.  The duty to make reasonable adjustments does not extend to enabling a disabled employee, who is no longer able to work, to leave in more favourable terms.  The purpose of reasonable adjustments is to facilitate and assist the employee to remain in employment.  In respect of the finding of aggravated damages, the EAT has confirmed that this type of finding will only be reserved for the most awful of cases.  This is good news for employers, however it is important to warn those conducting grievance processes that they must act appropriately and not in an oppressive or high handed manner.  Failure to do so may result in victimisation claims and also aggravated damages being awarded.