Tameside Hospital NHS Foundation Trust v Mylott

Under section 98A(2) of the Employment Rights Act 1996, the employer bears the burden of proving, on the balance of probabilities, that the employee would have been dismissed even if a proper procedure had been followed. Later events are not a reliable guide where the later process was itself unfair.

Reasonable adjustments under section 4A of the Disability Discrimination Act 1995 may include adapting attendance and grievance procedures where this might mitigate the employee’s disability-related disadvantage. The duty does not extend to facilitating ill-health retirement, which involves leaving employment. Expert medical evidence is generally essential to establish loss of earnings caused by discriminatory treatment. Injury to feelings from discriminatory procedural failures is not confined to the lowest Vento band merely because dismissal was one event.

The Trust dismissed an employee after prolonged sickness absence, while occupational health advice recommended an independent management review and further medical review after related grievance procedures had concluded. The Employment Tribunal upheld claims of unfair dismissal and disability discrimination, including failures to make reasonable adjustments, and awarded compensation for unfair dismissal, injury to feelings and aggravated damages.

On the Trust’s liability appeal, the issues included whether section 98A(2) established that a fair procedure would have made no difference, whether the alleged procedural steps were reasonable adjustments, and whether the dismissal constituted disability-related discrimination. On remedy, the employee challenged the refusal of earnings and pension loss, while the Trust challenged injury to feelings and aggravated damages.

1. Liability appeal. The appeal against unfair dismissal was dismissed. The Employment Tribunal was entitled to find that the Trust had not proved that dismissal would probably have occurred after an independent review, proper consideration of the grievance and further occupational health advice. The later grievance outcome could not reliably establish the counterfactual because that process was itself procedurally defective.
2. The Tribunal was entitled to find that adapting the grievance and attendance procedures could have mitigated the employee’s situational anxiety and facilitated a return to work. A reasonable adjustment need not be shown to guarantee that result. However, section 4A did not extend to a duty to facilitate ill-health retirement. That was a favourable means of leaving employment, not a step preventing or mitigating the disadvantage caused by a provision, criterion or practice. The finding of breach on that issue was quashed.
3. The disability-related discrimination finding under section 3A(1) was set aside. Following Malcolm, the Tribunal had to compare the employee with a person in materially identical circumstances who was not disabled. The evidence did not support a finding that such a person would have been treated more favourably. The Tribunal also confused disability-related and direct discrimination and had no proper basis for inferring discriminatory mental processes.
4. Remedy. The employee’s appeal against the refusal of loss of earnings and pension loss was dismissed. Liability findings under section 98A(2) and section 18B(1)(a) did not determine causation for remedy. Expert evidence was essential to establish that the specific breaches caused or materially exacerbated incapacity and thereby caused earnings loss.
5. The award of £16,000 for injury to feelings was upheld. The claim concerned prolonged mishandling of grievance and adjustment procedures, and was not merely compensation for a one-off dismissal. The £6,000 award of aggravated damages was quashed because the findings did not sufficiently establish high-handed or malicious conduct. Compensation was reduced to £16,000.

• Employment Tribunal: upheld claims of unfair dismissal and disability discrimination, including failures to make reasonable adjustments, and awarded £4,410 for unfair dismissal and £22,000 for disability discrimination.
• Employment Appeal Tribunal: dismissed the appeal against unfair dismissal and most reasonable-adjustment findings; allowed the appeal concerning disability-related discrimination and ill-health retirement; dismissed the employee’s remedy appeal; and allowed the Trust’s cross-appeal by quashing aggravated damages.