When considering whether someone has been dismissed and whether the reason was because of “something arising in consequence of … disability”, the Employment Appeal Tribunal (EAT) held in Cummins Ltd v Mohammed that tribunals must focus on the reason that was in the mind of the person who dismissed the employee.
Mr Mohammed, who had worked for Cummins for almost 30 years, was given a final written warning for aggressive behaviour in July 2016. The next month, he started a period of sick leave after being diagnosed with anxiety and depression.
He was advised by his GP to take a short break for a therapeutic holiday (although it was disputed whether he had sought permission from his employer). Before he went on leave, he was told by the occupational health doctor, Dr Cassidy, in mid-September that he was fit to return to work.
On 20 September 2016, he was invited by letter to attend a meeting on 22 September to discuss Dr Cassidy’s report. His wife telephoned HR the next day to explain that he could not attend because he was in Pakistan. The employer commenced a disciplinary hearing in June 2017and he was dismissed without notice. Mr Mohammed claimed disability discrimination and unfair dismissal.
Section 15(a) of the Equality Act states that it is discrimination to treat a disabled person unfavourably because of “something arising in consequence of [their] disability”.
The tribunal held that the principal reason in the mind of the dismissing officer at the disciplinary hearing was Mr Mohammed’s conduct. The tribunal also held that his dismissal amounted to unfavourable treatment on the basis that, had it not been for his disability, he would not have needed to take the holiday. He would not then have gone to Pakistan and would not have been dismissed. It also held that the dismissal was unfair and ordered the company to pay compensation of almost £30,000.
The company appealed against the findings of unfair dismissal and discrimination arising from disability on two grounds. First, it argued that the tribunal had not properly determined the company’s reason for dismissing Mr Mohammed and had substituted its own view. Second, when deciding if the dismissal was “something” that arose “in consequence of disability” it had adopted a “but for” analysis which was the wrong approach.
Upholding the appeal, the EAT said that having asked whether the company had treated Mr Mohammed unfavourably by dismissing him in the manner alleged, the tribunal should then have focused on the reason in the mind of the dismissing officer.
According to Mr Mohammed the reason for dismissal was because he had gone on a trip to Pakistan, an assertion that the tribunal just accepted. It did not consider whether it was the mere fact of travelling to Pakistan that resulted in the dismissal or the fact that it had happened after he had been told he was fit to return to work and he had not been granted permission to take the trip. In other words, it had failed to determine the reason for dismissal and whether it was “something” that arose in consequence of his disability.
With regard to the unfair dismissal claim, the EAT held that the tribunal had failed to ascertain the reason for dismissal and whether it fell within the band of reasonable responses. Although it had found that the reason was misconduct, it did not identify what that misconduct was. It had therefore failed to determine whether there were reasonable grounds for the employer to believe in the misconduct and whether dismissal fell within the range of reasonable responses. Instead the tribunal had substituted its own view for that of the employer, which was an error of law.
The EAT ordered the case to be reconsidered by a differently constituted tribunal.
This case is a reminder that it is important to be clear about what it is that arises from a person’s disability (the “something”) which causes the unfavourable treatment. The tribunal will now have to determine whether the material reason was the trip to Pakistan, in which case his claim may succeed, or whether it was because he had gone to Pakistan without obtaining permission, in which case it may not.