By Jo Seery, Professional Support Lawyer &
Louise Roberts, Employment Rights Lawyer
Ms Sandra Ashley, founder and former CEO of Walk the Walk Family Support Service, was dismissed following complaints against her of bullying, financial mismanagement, and data breaches.
One of the Directors, Mr Ogden, investigated the allegations and dismissed her. She brought claims for unfair dismissal and disability discrimination, citing dyslexia and depression.
Discrimination
Under s15 of the Equality Act 2010, a Claimant is treated unfavourably because of something that arises from their disability. Ms Ashley claimed her dismissal was because of “something” – namely because of her having difficulty preparing for and/or an inability to attend disciplinary meetings – and that this “something” arose because of her disabilities. The Employment Tribunal found on the facts the something was not caused by her dyslexia, nor her depression.
Ms Ashley appealed to the Employment Appeal Tribunal arguing that once it was clear the dismissal was not because of the original “something,” then it was an error of the Tribunal not to revisit the “something” and reframe it. Her argument was that her depression resulted in her being “unable to properly address the allegations put to her and properly defend herself” and it was this inability that amounted to the something that had caused her dismissal.
The EAT rejected this argument. They noted that Ms Ashley had been legally represented at all times from her disciplinary to her appeal at the EAT. It also noted that there had been a discussion as to the list of issues and the “something” had been confirmed by the Parties at the start of the hearing. The EAT considered previous cases which set out that, even where a party is unrepresented, there was no general duty that an employment tribunal had to take proactive steps to expand or modify the case put before them, unless in exceptional cases where it was necessary to depart from the agreed case in the interest of justice. This was not such an exceptional case.
Dismissal
The employment tribunal had concerns with the role of the same manager in both the investigation and the dismissal and criticised the fact there was no clear distinction between the investigation activity and the dismissal activity. However, it found that Ms Ashley had done little more than reject the allegations and was offered an appeal by an independent consultant and dismissed her claim for unfair dismissal. Ms Ashley appealed argued that being offered an appeal hearing did not cure this procedural failure only an actual fair appeal hearing could have done so.
The EAT made a finding that there is no statutory requirement for an employer to appoint a separate manager in every case, and no statutory requirement to have separate investigation and disciplinary stages. This position is supported by the ACAS Code of Practice. Some cases need an investigation to establish the facts, while some cases can proceed directly to a disciplinary hearing. The EAT found that the Respondent had taken reasonable steps to complete an investigation, but it was the Claimant who had gone on holiday two days before one investigatory meeting, had refused to attend two further investigatory meetings and had walked out of a fourth meeting. The Respondent therefore decided rather than to continue to delay the investigation, that it was reasonable to proceed to a disciplinary with the same manager. The EAT agreed.
Why this matters?
The case is a reminder of the technical difficulties in framing a claim for discrimination arising from disability and of the importance of seeking early advice. The case is also a reminder of the importance of complying with disciplinary procedures and failing to attend an appeal may undermine a claim where there have been procedural failings earlier in the process.
