C Knightley v Chelsea and Westminster Hospital NHS Foundation Trust [2022] EAT 63; 9 November 2021
Employment Tribunal
The claimant (CK) was employed by the Chelsea and Westminster Hospital NHS Foundation Trust (the Trust); she suffered from stress, anxiety, and reactive depression which was accepted as a disability under the Equality Act 2010 during the tribunal proceedings. Following extended periods of sick leave, CK was subjected to capability proceedings and eventually dismissed by the Trust. CK brought numerous claims including unfair dismissal, discrimination arising from disability contrary to s15 of the Equality Act 2010, and failure to make reasonable adjustments contrary to s20 of the Equality Act 2010.
One allegation of failure to make reasonable adjustments related to the Trust’s requirement that employees submit an appeal within ten working days of the dismissal letter. CK asserted that due to her disability, this placed her at a substantial disadvantage in comparison with non-disabled employees, because she was unable to submit her appeal within this timeframe, which the Trust enforced despite CK requesting an extension. The Employment Tribunal (ET) upheld this allegation of failure to make reasonable adjustments, stating that it would not have been costly or disruptive for the Trust to extend the deadline or accept the late appeal submitted by CK.
The Employment Tribunal dismissed all of CK’s other claims, including her other allegations of failure to make reasonable adjustments. Regarding unfair dismissal, the Employment Tribunal found that the dismissal procedure was fair, and dismissal was within the range of reasonable responses. This was despite finding that it would have been a reasonable adjustment under the Equality Act 2010 for the Trust to have extended the appeal deadline.
Regarding the s15 Equality Act 2010 claim for discrimination arising from disability, the Trust did not dispute that the capability proceedings and dismissal amounted to unfavourable treatment of CK. CK also accepted that the Trust had a legitimate aim in taking these measures, but disputed that they were a proportionate means of achieving the aims. The Employment Tribunal dismissed this claim, finding that the capability proceedings and dismissal were proportionate given her extensive sickness absence and there being no prospect of her returning to work in the foreseeable future.
Employment Appeal Tribunal
CK appealed on various grounds, including that the Employment Tribunal should have upheld the unfair dismissal claim because it had found that an appeal deadline extension was a reasonable step the Trust could have taken, and that this failure to make a reasonable adjustment had denied her an effective opportunity to appeal. CK asserted that, by finding that there should have been a reasonable adjustment to allow an extension of time for appeal, the Employment Tribunal had necessarily found that the employer acted unreasonably in failing to grant the extension.
CK also asserted that if the dismissal was found to be unfair, then it followed that the dismissal was not a proportionate means of achieving a legitimate aim, and was therefore in breach of s15 Equality Act 2010.
The Employment Appeal Tribunal (EAT) stated that the lack of an opportunity to appeal does not necessarily render a dismissal unfair; whether it does will depend on the circumstances of the case. The availability of appeal is part of the dismissal procedure and is therefore relevant to the overall assessment of procedure.
The Employment Appeal Tribunal set out clear distinctions between the different legal tests for unfair dismissal claims, claims for failure to make reasonable adjustment, and claims for discrimination arising from disability. The Employment Appeal Tribunal stated that the Employment Rights Act 1996 (ERA) and the Equality Act 2010 have different legislative aims and there is no reason why a breach of one of the provisions should mean another is automatically breached. The Employment Appeal Tribunal stated that, whilst the Employment Tribunal’s findings of fact may be relevant to all three claims, the legal tests for each claim should be applied to those facts separately.
The Employment Appeal Tribunal held that the Employment Tribunal’s finding that the Trust failed to make the reasonable adjustment of extending the appeal deadline was a discrete conclusion, and did not depend on or reflect the merits of the unfair dismissal case. For the unfair dismissal case, the Employment Tribunal had correctly looked at the dismissal procedure in its entirety and concluded that as a whole it was a reasonable procedure open to a fair employer; the non-extension of the appeal deadline did not render the procedure as a whole unfair. The Employment Appeal Tribunal stated that the reasonable adjustments question was narrower than the range of reasonable responses test having regard to all the circumstances required by unfair dismissal law. Further, whilst the factual finding that the appeal deadline could reasonably have been extended may have been relevant to the question of whether the dismissal was fair, the legal conclusion of a failure to make reasonable adjustments contrary to s20 Equality Act 2010 was not relevant to the question of unfair dismissal.
Addressing CK’s argument that a finding of unfair dismissal would also mean the dismissal was disproportionate under s15 Equality Act 2010, the Employment Appeal Tribunal set out again the differences in the legal criteria of these two provisions. The proportionality test under s15 Equality Act 2010 can be based on matters not in the mind of the employer at the time of the dismissal, whereas the law regarding unfair dismissal focuses on what is in the mind of the employer at the time of dismissal. The Employment Appeal Tribunal found that ultimately, this ground of appeal did not arise, because there had not been a finding of unfair dismissal.
Yavnik Ganguly, solicitor in our Employment Law team, comments:
The Employment Appeal Tribunal sets out in this judgment helpful clarification on how numerous claims can be considered together. Where dismissal circumstances give rise to claims for unfair dismissal and failure to make reasonable adjustments, factual findings can be relevant to the legal criteria for the different provisions. However, where a claim is upheld regarding failure to make reasonable adjustments in the dismissal procedure, this does not mean that an unfair dismissal claim should also be upheld. The legal tests for separate provisions should be applied separately to the factual findings.
Implications for practitioners
The Employment Appeal Tribunal rejected appeal arguments that an Employment Tribunal which found a failure to make the reasonable adjustment of extending a dismissal appeal deadline, should have also found that the dismissal was unfair. The Employment Appeal Tribunal also rejected arguments that an unfair dismissal finding should also give rise to a finding that a dismissal is disproportionate in breach of s15 of the Equality Act 2010.
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This article was first published in the Discrimination Law Association (DLA) briefings, November 2022.