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United Kingdom: Disability Discrimination EAT Case

By - - Discrimination, Employment Law

A recent decision by the UK Employment Appeals Tribunal (EAT) on a claim for disability discrimination and unfair dismissal, provides several points for employers to note.

Facts of the Case

In this case, the claimant suffered from endometriosis, a chronic condition affecting only women who can suffer pain, fatigue and digestive and cognitive symptoms, which may fluctuate but often last for years.

The employer (a global business services company) operated an ‘up or elsewhere’ policy – employees must progress or face dismissal. The employer assessed that the claimant had not progressed to the next grade and made the decision to dismiss her.

Her claim for disability discrimination and unfair dismissal was based on:

  • Endometriosis is a disability. In the claimant’s case it had been significant enough to cause repeated absences from work ultimately needing an operation, which occurred shortly before she was dismissed.
  • The employer had actual or constructive knowledge of her condition and had failed properly to make reasonable adjustments or to assess the substantial long-term impact of her condition.
  • Her dismissal based on not being ‘promotion ready’ was unfair.
The Decision

The employees claim was successful. The EAT noted in its decision:

  • A statutory disability is a physical or mental impairment that has a substantial negative effect on the sufferer’s ability to perform normal day to day tasks, and which is long-term (likely to last more than 12 months).
  • Temporary periods of improvement of the condition do not mean it was not long term or unlikely to re-occur. These would not necessarily remove the disability qualification.
  • Not being promotion ready was not automatically a fair reason for dismissal.
  • Promotion based dismissals are not always “capability” issues. If an employee is working well in their current role, dismissing for not progressing is unlikely to be fair unless justified as “Some Other Substantial Reason”, after a robust and transparent process.       
Notes for Employers
  • Seek and rely on clear medical evidence for any potential disability including occupational health assessments which should be kept up to date. Do not assume the condition has resolved if there are periods of remission.
  • Look at meaningful adjustments where the condition is accepted as a disability and take care to separate disability issues in performance assessments.
  • Make sure all processes followed are fair and well documented.
  • In relation to “up or elsewhere” policies, employers should take to ensure the policy and its related procedures are well documented (in employment contracts and policies), understood by employees, fair and comply with UK employment law.     

This is a high-level general update only. Legal advice should be obtained on specific circumstances.
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