Prospects For People With Learning Difficulties v Harris

A paid suspension will generally not amount to harassment under Disability Discrimination Act 1995 where it is reasonably necessary, carefully considered, kept under review, and clearly identified as pending investigation or decision. It may nevertheless violate a disabled employee’s dignity where it is imposed peremptorily without proper consideration of the disability, consultation, or available alternatives.

Where dismissal for capability is contemplated, the employer must consult the employee in good time and make the employment risk clear. Consultation after a provisional dismissal decision, or an appeal after dismissal, does not cure the absence of a meaningful pre-dismissal process.

The employee was a disabled support worker caring for residents with severe disabilities. She could not perform CPR and had significant limitations in manual handling. After she failed to obtain a renewed first-aid certificate, the employer suspended her. It later imposed a second suspension and dismissed her for capability.

The Cardiff Employment Tribunal upheld claims for unfair dismissal and, in part, harassment under the Disability Discrimination Act 1995. It found that the dismissing procedure was unfair because the employee had not been consulted properly before the dismissal process began. The employer appealed, alleging perversity and legal error in the findings on suspension and unfair dismissal.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the two suspensions constituted harassment and that the dismissal was procedurally unfair.

2. A suspension on full pay is usually a neutral step and will not ordinarily be harassment if reasonably imposed pending investigation or decision. Suspension should not be routine. It must be necessary, carefully considered, reviewed, and explained as non-disciplinary. Although section 3B contains no freestanding justification defence, a properly and reasonably imposed suspension will not reasonably be regarded as having the proscribed effects under section 3B(2) of the Disability Discrimination Act 1995.

3. On the Tribunal’s findings, however, both suspensions were exceptional. The employer knew of the employee’s CPR limitation and did not consider it with her before sending her on the course and suspending her. It could have prepared for the issue or considered supernumerary work. The second suspension was also imposed without adequate consultation and was not shown to be reasonably necessary. The Tribunal was therefore entitled to conclude that the suspensions violated the employee’s dignity.

4. The employer had a potentially fair capability reason for dismissal. However, when dismissal of a disabled employee for capability is being considered, the employee must be consulted in good time and told clearly that employment is at risk. Here, the employee first learned of that risk when the employer had already made a provisional decision to dismiss. A later meeting and a limited appeal could not cure the absence of meaningful consultation before the formal dismissal process began.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the Cardiff Employment Tribunal’s findings of unfair dismissal and harassment.
• Employment Tribunal sitting in Cardiff: Judgment dated 5 August 2011. It upheld the unfair-dismissal claim and part of the harassment claim, while dismissing other claims.