04 November 2015

In the case of Monmouthshire County Council v Harris Mrs Harris and her employer had, following Occupational Health advice, agreed to allow her to adopt a pattern of working from home during early mornings and late afternoons and to reserve Fridays for administration, again working from home. Following a change in manager, her working pattern was no longer supported and she was asked to return to her original plan. She went off work ill and did not return.

The Council managed her absence by seeking input of relevant medical professionals. The evidence suggested that although she was unfit for work and was likely to remain so for the immediately foreseeable future, it could not be said that she would be permanently unfit until the normal pension age. She was therefore not entitled to ill health retirement in terms of the Council’s policy. She was thereafter dismissed.

Mrs Harris claimed that her dismissal was unfair and unlawful disability discrimination. The Employment Tribunal agreed holding that the Council had not clearly warned Mrs Harris of the possibility of dismissal and that there had been inadequate consultation. The Tribunal also found that there had been a failure to make reasonable adjustments, which also went to the question of fairness: the ceasing of her home working arrangements. The Tribunal also found that Mrs Harris was dismissed because of something arising in consequence of her disability (her level of sickness absence). It was therefore for the Council to demonstrate that dismissal was a proportionate means of achieving a legitimate aim; here, the achievement of an appropriate use of public funds in discharge of public duties and the need to consider stresses placed on the remaining staff. The Tribunal was not satisfied that the decision could be justified.

The Employment Appeal Tribunal allowed the Council’s appeal against the decision for a number of reasons. The Employment Appeal Tribunal was satisfied that the Council had established a legitimate aim in dismissing, namely the safeguarding of public funds and the need to consider the stress on the remaining staff, given its inability to fund a replacement to provide cover for the continuing absence. The issue was one of proportionality: was the dismissal a proportionate means of achieving that aim? The Tribunal’s reasoning in this regard was found to be flawed, not least given its failure to properly deal with the issue of reasonable adjustments.

With regard to the question as to whether the dismissal was unfair, the Tribunal’s reasoning needed to demonstrate that it had considered whether the Council could have been expected to wait longer, as well as the question of the adequacy of any consultation and the obtaining of proper medical advice. The Tribunal did not consider these issues. The appeal was therefore successful and the parties had to provide submissions as to how the matter was to be dealt with.

This case reminds employers of the need for a careful and fair procedure when managing absence and attendance. Our recent Managing Absence session considered these issues at length. Employers should ensure that dismissal is a last resort and that all reasonable adjustments are carried out. This is an area that can be difficult and where claims can arise. Ensuring appropriate advice is taken and the risks are managed is key. Give your bto contact a call.

To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.