Labour & European Law Review Weekly Issue 217 12 May 2011
Under the disability discrimination legislation, employers have to make reasonable adjustments for disabled employees in certain circumstances. The Employment Appeal Tribunal (EAT) held in Tameside Hospital NHS Foundation Trust v Mylott that failure to follow proper procedures amounted to unfair dismissal and a failure to make a reasonable adjustment.
During a period of convalescence after an operation, Mr Mylott was pressured to return to work by his manager, Mr Fogarty. Soon after he came back in April 2005 he began to exhibit stress-related symptoms.
In January 2006 Mr Mylott attended a meeting with Mr Fogarty and a new manager Mrs Holroyd about some outstanding work. Both were rude to him and he went on sick leave in early February with stress and situational anxiety.
An occupational health consultant recommended an independent management review of the situation. The Trust advised him to pursue a bullying and harassment complaint and treated the investigation into that complaint as the independent management review. It found “some issues relating to communication” and recommended clarification of his role and responsibilities. Mr Mylott was unhappy with the outcome.
He attended Occupational Health (OH) in November who advised that he was unlikely to return until his grievance was resolved. At an absence management meeting Mr Mylott said he would be lodging a grievance. Management told him that as his sick pay ran out on 19 November he would be either redeployed or dismissed, if he did not agree a return date.
In the event, he was dismissed with effect from 14 February 2007. Mr Mylott claimed unfair dismissal, disability related discrimination and discrimination as a result of the Trust’s failure to make a reasonable adjustment.
The tribunal said his dismissal was unfair because the Trust failed to follow a proper procedure. In particular it had failed to await the outcome of the grievance process and to take the advice of OH; it had involved Mrs Holroyd who was not independent; and it had failed to consider the possibility of ill-health retirement.
It also decided his dismissal was for a disability related reason and that the Trust discriminated against him by failing to make reasonable adjustments, such as carrying out an independent review, failing to seek occupational health advice and failing to look into the possibility of ill-health retirement.
The tribunal awarded Mr Mylott £16,000 for injury to feelings and £6,000 for aggravated damages for the “high handed and malicious” acts of Mrs Holroyd but nothing for future loss of earnings.
The EAT upheld the finding of unfair dismissal but overturned the decision that his dismissal was disability related. Referring to the decision in London Borough of Lewisham v Malcolm, it said that the comparator was someone with the same absence record and employment history as Mr Mylott who would also have been dismissed.
However it upheld the finding that Mr Mylott had been discriminated against as a result of the Trust’s failure to make reasonable adjustments with one exception. The EAT did not agree that a failure to assist an application for ill-health amounted to a reasonable adjustment.
It also overturned the award of aggravated damages, saying that a finding of “malice” against a manager was very serious and had to be fully supported by evidence. Although there were individual episodes which could justify the conclusion that Mrs Holroyd’s conduct was sometimes “brusque and insensitive”, it did not justify the conclusion reached by the tribunal.
Neither had the tribunal erred by failing to award loss of earnings. The fact that it had found that adjustments might help his disability was not enough to award him future loss of earnings. Expert evidence was necessary as to whether he might have returned to work but for the discrimination.
It should be noted that this case was concerned with whether or not an obligation to assist an employee to apply for ill-health retirement amounted to a reasonable adjustment. This is a very different test than applies in cases of unfair dismissal and an employer will still be expected to take reasonable steps to find out whether an employee is entitled to the benefit of ill-health retirement before dismissing on grounds of capability.