20 March 2017

In the case O’Brien v Bolton St Catherine’s Academy the Claimant had been absent from work for over a year. It was not clear when she would be fit to return to work. She was dismissed on account of her capability/absence.

The Claimant appealed against her dismissal and at the appeal hearing produced evidence suggesting that she was fit to return to work in the near future. Her employer did not take this evidence into account, focussing instead on whether the decision to dismiss at the time (with the information that was then available) should be upheld. The Claimant’s appeal was therefore dismissed.

The Claimant argued that her dismissal was unfair and discriminatory (the dismissal being unfavourable treatment because of something arising in consequence of her disability which treatment was, arguably not justified). The Tribunal found that given these circumstances, the failure to take this new evidence into account rendered the dismissal unfair. That finding was upheld on appeal.

The Respondent argued on appeal that the Employment Tribunal had treated the tests for unfair dismissal and discrimination arising from disability as the same when the different statutory words required a different analysis. The Court of Appeal rejected that argument.

While there are differences in the statutory wording and the burden of proof, the Court found that the outcome in both types of claim would rarely differ. In most cases an unfair dismissal would not be capable of being discriminatory treatment which could be justified.

This is an interesting case as it brings into sharp focus the role of the Tribunal when considering unfair dismissal cases. The Tribunal is not there to substitute its view as to whether the dismissal is fair or not, but rather needs to determine whether the dismissal was fair in all the circumstances. Case law resulted in there being a “range of reasonable responses” test whereby Tribunals should decide whether a reasonable employer in all the prevailing circumstances could have dismissed or not. The test is not one of perversity i.e. that no employer would have dismissed.

That contrasts with justification in discrimination cases where Tribunals require to consider the employer’s aim for the treatment, determine whether that was legitimate and then decide whether the treatment was a proportionate way of achieving the aim.

The Court of Appeal takes a pragmatic approach noting that Tribunals are often best placed to consider these issues from a common sense perspective and as an industrial jury. Nevertheless, the statutory wording is different in both cases and Tribunals do need to carefully consider the facts arising in each case.

Employers should ensure when dismissing employees that there is no reasonable alternative to dismissal, especially where other factors, such as disability, are present. Care is needed to consider the full picture and ensure that any potential discrimination can be objectively justified.

Judgment: O'Brien v Bolton St Catherine's Academy

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