Claim
THE CLAIMS
- Discrimination on the grounds of disability
- Automatic unfair dismissal
THE RESPONSE
The dismissal was for repeated poor attendance and consequent risk of a negative impact on the effectiveness of a key element of a regulated business
THE JUDGEMENT
The discrimination claim was successful – the dismissal was found to be as a result of “something arising from the disability” (the something being the absence from work due to sickness).
The dismissal was therefore automatically unfair.
The unfair dismissal claim succeeded, and the claimant was awarded £1500 for hurt feelings and £2100 for financial loss. The claimant was awarded zero for the automatically unfair. dismissal.
THE STORY
The claimant had less than 1 years’ service. She had advised Verite during the recruitment process that she suffered from migraines but managed the condition and had never had time off with her previous employer or had to go home during a work day. The Tribunal found that she had misled Verite in this regard as she had significant issues with migraines and absence in previous years, that her assertion that the condition was “very controlled” was in the words of the Tribunal “false” and that she deliberately did not disclose that she was in receipt of Long Term Incapacity Allowance.
She had 37 days absence during the 10 months that she was employed. Of these 11 were certified (all unrelated to migraines) and 26 that she claimed were migraine related (none of which were certified). The Tribunal took her word that the 26 were migraine related …..
The Claimants hours were increased to 6 a day by mutual agreement with flexible start, finish and break times and then by mutual agreement, reduced to 4 hours a day, she confirmed to the employer that work was NOT a contributory factor to the migraines.
The employer decided that the absences were not something that she could control , that no reasonable adjustments had been requested beyond those put in place by mutual agreement, therefore saw no merit in applying an improvement target and, for that and other well intentioned reasons believed that to apply an Attendance Improvement Plan (AIP) would in itself be a discriminatory act. The claimant was dismissed with notice and regret.
REASONS FOR THE DECISIONS AND REMEDIES
The employer knew she was disabled; they knew that the majority of absences were something arising from the disability therefore the decision was related to the disability. There is a sound legal defence to such a dismissal if it is found that the decision was a “proportionate means of achieving a legitimate aim”. In this case the Tribunal clearly agreed that the dismissal was to achieve a legitimate aim – a key element of the regulated business was being harmed by the absence levels. However the Tribunal did not accept that it was a proportionate means of achieving that aim.
Because the employer did not follow their own policy which called for steps before dismissing such as considering an independent medical report and the establishment and monitoring of an AIP.
Having established that it was discrimination and automatically unfair the Tribunal considered remedies.
[a] Discrimination re hurt feelings. The Jersey Tribunal uses a version of the UK Vento model which applies 3 bands of seriousness and decided that this case warranted the lower end of the middle band (£1500-£4000) and awarded £1500.
[b] Discrimination re financial loss. The Tribunal decided that if the employer had followed their attendance policy it would have taken 3 months (August to October) to appl and the dismissal would then have been proportionate and NOT unfair. August had been paid as notice, leaving 8 weeks and 4 days for the remaining period. The Tribunal adjudged that based on her record she would have typically been absent for 9 days leaving seven weeks as the period of loss which resulted in an award of £2100.
[c] Automatically Unfair dismissal. The maximum award allowed under statute was UP to 4 week’s pay (£1200). However, the Tribunal is empowered to reduce awards by any sums that they consider to be “just and equitable”. The Tribunal considered that the claimant had been “adequately rewarded” for her discriminatory dismissal with the £3600 described earlier and reduced the award to zero.
KEY LEARNING
- Follow your policy – the stages and provisions need to be complied with before dismissing. In Disability/health cases we would always recommend an Occupational Health Report which are expert and compelling documents as both [a]guidance and [b] evidence.
- Do not assume that a step will or will not be discriminatory – take expert HR or legal advice at the earliest stage possible.
- Do not automatically be anxious when you receive a Tribunal Claim Form claiming (as this one probably did) £11200 – your real risks were very often much lower under the old Tribunal award system and this case judgement will be referenced and carry weight under the newly increased regime. The Jersey Tribunal has a strong track record of reducing awards for the “just and equitable” factor as here and also for what is known as “contributory fault” related to the employee’s conduct, attitude, etc.
- Take professional advice on whether and how to make sure your Response Form and evidence make as strong a case as possible for a 77F reduction in any award. The Claimant will always claim the maximum award and will allege that JACS have told them that is what they will get. This can often assist in achieving sensible settlement agreements should that be a pragmatic and cost effective step to take.
Article by Tony Riley