Hibbert v The Home Office & Ors (Disability Discrimination)

An employer is not required, as a reasonable adjustment, to impose a lesser disciplinary sanction merely because dismissal will adversely affect an employee’s mental health. That is so where the misconduct pre-dated the disability and dismissal was unfair irrespective of disability.

However, a disabled employee’s actual ability to participate in a disciplinary hearing does not retrospectively answer whether an adjustment was required. Where the employer knows of the disability but lacks occupational-health advice about participation or possible adjustments, it may be required to postpone the hearing pending that advice. Liability must be assessed without hindsight.

The claimant was dismissed for gross misconduct after obtaining reimbursement of expenses despite her manager’s refusal to approve the claim. The Employment Tribunal found that she became disabled in September 2010. It dismissed her disability-discrimination claims, but upheld her wrongful and unfair dismissal claims.

The Tribunal found that dismissal was disproportionate and procedurally unfair. It also held that the claimant could participate adequately in the disciplinary hearing, so that there had been no failure to make reasonable adjustments. The claimant appealed the dismissal of aspects of her disability-discrimination claims, including the refusal to postpone the hearing and the decision to dismiss.

The central issue was whether the Equality Act 2010 required an adjustment to the hearing or sanction because of the effect on the claimant’s mental health.

1. Appeal allowed in part. The appeal succeeded only on the failure to postpone the disciplinary hearing pending the occupational-health assessment. Otherwise it was dismissed.

2. The Tribunal was entitled to find that the claimant was not substantially disadvantaged in her ability to participate in the hearing. She could state her case in writing and orally, and she in fact participated fully. The employer was therefore not required to adjust the procedure on the basis that she could not communicate or take part effectively.

3. The refusal to dismiss, or to substitute a lesser sanction, was not a reasonable adjustment required by section 20. The claimant’s misconduct occurred before she was disabled and did not arise from her disability. The Tribunal had already found dismissal unfair on ordinary unfair-dismissal grounds. That conclusion would have been the same for a non-disabled employee or an employee with a different disability. There was accordingly no disability-related disadvantage to be avoided by altering the sanction.

4. The Tribunal’s findings nevertheless established that the hearing should have been postponed until the occupational-health report was available. At the time, the employer knew that the claimant had been certified unfit for work with depression and had begun antidepressant medication. It did not know whether her capacity to participate might be impaired or whether another adjustment might be needed. A reasonable adjustment was therefore required to obtain that information before proceeding. The issue of liability had to be assessed without hindsight, even though later evidence showed that postponement would probably not have changed the ultimate result.

5. The likely financial consequence of that additional finding was limited. The Tribunal had already treated the failure to postpone as making the dismissal unfair, and any award for the adjustment breach apart from dismissal was likely to be nominal. The direct-discrimination challenge also failed: the Tribunal’s finding that the decision-maker would have proceeded similarly with a non-disabled employee who had not persuaded him of an inability to attend was not perverse.

• Employment Appeal Tribunal: appeal allowed only insofar as the refusal to postpone the disciplinary hearing pending occupational-health advice was a failure to make reasonable adjustments.
• Employment Tribunal: dismissed the disability-discrimination claims, but upheld wrongful and unfair dismissal claims.