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Act of dismissal may be discriminatory

Posted on 29th July 2009
Case law

The EAT held that a college's failure to make reasonable adjustments to avoid a disabled employee's dismissal made the dismissal an act of disability discrimination.

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It was impossible to disentangle the failure to make reasonable adjustments from the dismissal.

Fareham College Corporation v Walters (EAT)

Background

Ms Walters worked for Fareham College as a full-time lecturer. In February 2006 she started long-term sick leave. In June 2006 Ms Walters received from the College a copy of its managing absence policy. This highlighted the College's commitment to supporting sick employees back to work including the possibility of a phased return.

At a formal review meeting held with the College on 7 September 2006 Ms Walters explained that she was waiting for an operation in October 2006 and asked for a further review to take place in December 2006 with the expectation that she would return to work in January 2007 on a half-time basis, working day rather than evening hours. At the meeting Ms Walter's request was refused and she was dismissed with immediate effect.

Ms Walters made a claim for disability discrimination based on the College's failure to make reasonable adjustments which would have helped her return to work. She won her claim at the employment tribunal. The College appealed to the Employment Appeal Tribunal.

The decision

The EAT dismissed the appeal agreeing with the employment tribunal that the decision to dismiss was unlawful because of the College's failure to make reasonable adjustments. The EAT said it was impossible to disentangle the College's failure to make reasonable adjustments from its decision to dismiss.

The EAT rejected the College's argument that the question of reasonable adjustments should be based on an "individual, like-for-like comparison" with a non-disabled employee who had been dismissed after a nine month absence. It was not necessary for Ms Walters to satisfy the tribunal that someone who did not have a disability but whose circumstances were otherwise the same as hers would have been treated differently. If this was required, it "would defeat the purpose of the disability discrimination legislation."

In practice

This decision could make it easier for disabled claimants to show that they have been dismissed in breach of the Disability Discrimination Act 1995. This case suggests that where a dismissal could have been prevented by the employer making a reasonable adjustment (e.g. by allowing a phased return to work or a move to alternative work) the dismissal will automatically be discriminatory.

This decision also highlights the importance of employers following their own procedures. Here the College's policy on managing absence was not followed. The College did little to help Ms Walters successfully return to work by permitting her more time off to recover from her operation before letting her return on a phased and part-time basis.

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