When considering whether an employer has discriminated against an employee for disability-related reasons, the Employment Appeal Tribunal held in Citizens Advice Merton and Lambeth Ltd v Mefful that a tribunal cannot find an employer guilty of discrimination if the reasons all post-date the decision to dismiss.
This long-running case concerned Mr Mefful who was appointed as a specialist service manager at Merton and Lambeth Citizens Advice in January 2004. From 2005 onwards, he complained to the chief executive, Ms FP, on a number of occasions about his pay, but without success.
In September 2011, Ms FP threatened him with disciplinary action for alleged unexplained absences. He then lodged a grievance on the basis that he had explained to her in advance why he would be absent. At the grievance hearing on 17 November, he told trustees that he was being bullied and sexually harassed by Ms FP. She went off sick in December 2011 and an interim CEO was appointed who initiated a restructuring exercise. Mr Mefful then went off sick from April to July 2012, at which point he told his employer that he had serious problems with his shoulder causing him extreme pain. He was dismissed in August 2012.
Mr Mefful lodged a tribunal claim for unfair dismissal and automatically unfair dismissal on the basis that he had made a protected disclosure (blown the whistle) at the grievance hearing in November 2011, as well as disability discrimination.
The 2020 tribunal (there were a number of tribunal hearings before this) found that a decision had been taken, unbeknown to Mr Mefful, on 19 March 2012 to “lose” him as part of the ongoing reorganisation. And although he was invited to attend an interview for the new role of business manager, his dismissal was already a "done deal" and everything after that was a sham. It also found that Mr Mefful’s position was not redundant as the business manager position was effectively the same job as he had been doing.
Instead, the “primary reason” for dismissal was the organisation’s belief that Mr Mefful lacked “capability and engagement”. They chose not to refer him to occupational health because they did not want to give him the impression that they might be prepared to engage with reasonable adjustments and thus retain him. The tribunal concluded therefore that he was dismissed for a “disability related reason”.
It also found that the need to deal with Mr Mefful’s grievance that he was being bullied and sexually harassed “was a protected act and a protected disclosure [and] was a further reason for his dismissal”.
Citizens Advice appealed, arguing, among other things, that if the decision to dismiss in March 2012 was because of Mr Mefful’s failure to engage, it could not have been discriminatory because they did not know he was disabled until he went off sick in April that year.
The EAT held that the tribunal was wrong to take into account events that occurred after 19 March 2012 when finding that Mr Mefful’s dismissal was related to his disability. As all their findings were based on the period from April to July 2012 when Mr Mefful was not at work and after the dismissal decision had been taken, they could not have been the reason for his dismissal.
The tribunal’s reasoning in relation to the protected disclosure was also flawed. As the law states that it must be “the reason or principal reason for dismissal” the tribunal could not simultaneously find that the principal reason for dismissal was because Mr Mefful lacked “capability and engagement”. The two simply did not “marry up”.
The EAT therefore concluded that the finding of disability discrimination must be revoked, and it remitted the case for reconsideration to the same tribunal.