A recent case highlighted that a dismissal can be rendered an act of disability discrimination if an employer fails to make reasonable adjustments. Richard White considers this case further.
The facts
In the recent case of Fareham College Corporation v Walters, the Employment Appeal Tribunal held that a dismissal can be an act of unlawful disability discrimination if the employer failed to make reasonable adjustments that could have avoided the dismissal.
Mrs Walters was employed by Fareham College as a lecturer in specialist computing. Her employment commenced on 3 June 2004.
The college had a ‘managing absence policy’, which encouraged employees to return to work and referred to the possibility of a phased return and the need, under the Disability Discrimination Act, to make reasonable adjustments. The policy also provided for the college principal to consider dismissal where sickness absence was envisaged to extend beyond nine months.
In 2004, Mrs Walters developed a condition known as plantar fasciitis, which caused pain in her feet and restricted her mobility. She went on sick leave for 28 days from 11 January 2005 due to her condition.
Mrs Walters was then absent for shorter periods of sickness in November and December and her GP wrote to the college in respect of her various health issues. Around this time, the college expressed concerns as to Mrs Walters’s performance and had invited her to a meeting on 31 January 2006 to investigate the matter. Mrs Walters expressed a number of health concerns at this meeting and went on further sick leave on 1 February 2006.
Mrs Walters was ultimately diagnosed with fibromyalgia. Following correspondence between the college and her GP and Mrs Walters’s second consolation with occupational health, it was determined that she might be able to consider a phased return to work in September 2006 but it was unlikely that she would be fit to return to her full role before the beginning of 2007.
Mrs Walters was eventually dismissed on 7 September 2006. She claimed unlawful disability discrimination prior to dismissal by the college refusing a phased return to work (failure to make reasonable adjustments) and disability-related discrimination pursuant to the dismissal.
The decision
The Employment Appeal Tribunal held that the college’s failure to make reasonable adjustments to facilitate Mrs Walters’s return to work rendered her dismissal an unfair act of disability discrimination.
The tribunal found that there were in fact other IT roles within the college for which Mrs Walters might have had suitable experience, in administration or supporting roles, but that these roles were not discussed with her.
Comment
This decision will mitigate the effect of the House of Lords’ decision in London Borough of Lewisham v Malcolm. The effect of the Malcolm case was that a non-disabled comparator to whom a disabled claimant has to compare himself is not simply a non-disabled fellow employee, but rather a non-disabled fellow employee who is in the same situation.
The Malcolm case means that for a claim of disability discrimination to be successful, a disabled person dismissed following a lengthy period of sickness would need to show that a fellow non-disabled employee would not have been dismissed had they been away from the office for the same period of time. In other words the disabled person was treated differently. This is difficult for the claimant.
In Fareham College Corporation v Walters it was made clear that if, at the point at which the employer was considering dismissing the disabled employee, there was a reasonable adjustment which would have avoided the dismissal, the dismissal itself will be an unlawful act of disability discrimination. In this way, claimants do not need to rely solely on showing the comparator was treated differently and the problems posed by Malcolm in these situations can thereby be avoided.
For further advice, please contact Richard White, specialist employment solicitor at Withy King, on 01865 268636 or email richard.white@withyking.co.uk.
