Monmouthshire County Council v Harris

In an absence-related capability dismissal, an Employment Tribunal must address whether the employer could reasonably have been expected to wait longer. It must also consider consultation and proper medical advice. Earlier failures to make reasonable adjustments may form part of the background, even if a separate claim is time-barred, but they do not themselves preclude a fair dismissal.

For Equality Act 2010 section 15, proportionality requires an objective balancing exercise. The Tribunal must consider both any past adjustments failure and whether any continuing adjustment could have avoided the disadvantage when dismissal was considered. Compensation must allow for the possibility that a fair or non-discriminatory dismissal would have occurred despite employer conduct causing or exacerbating incapacity.

The Claimant, a disabled Senior Education Welfare Officer, had been absent through ill-health from January 2013 and was dismissed for capability on 31 July 2013. The Cardiff Employment Tribunal found the dismissal unfair and discriminatory under section 15 of the Equality Act 2010. It also held that the employer had earlier failed to make reasonable adjustments, although that stand-alone claim was out of time. It awarded £238,216.37 and made no Polkey reduction.

The employer appealed the liability findings and the refusal to reduce compensation. The central issues were whether the Tribunal had correctly assessed proportionality under section 15, fairness under section 98 of the Employment Rights Act 1996, and the possibility of a later fair or non-discriminatory dismissal.

1. Appeals allowed. The Tribunal’s findings of unfair dismissal and discrimination arising from disability could not safely stand. The parties were directed to make written submissions on disposal within 21 days.

2. On section 15, the employer had established legitimate aims relating to public funds and pressures on remaining staff. The Tribunal was entitled to treat its earlier failure to make reasonable adjustments as potentially relevant background. However, it had found that no adjustments obligation continued when dismissal was considered. Its reasoning did not show that it balanced that fact, or the uncertain and pessimistic updated medical prognosis, when deciding whether dismissal was proportionate. The required objective evaluative exercise had therefore not been performed.

3. On unfair dismissal, the earlier adjustments failure could be relevant background notwithstanding that the separate claim was out of time. It could not mean that the employer was barred from relying on disability-related absence. The Tribunal had to assess the decision at the effective date of termination within the range of reasonable responses.

   In a capability dismissal caused by prolonged absence, the Tribunal had to address whether the employer could reasonably have waited longer, alongside consultation and proper medical advice. Although it could criticise the consultation, the involvement of the manager and the use of medical evidence, its reasoning did not engage with the fundamental question whether further waiting was reasonably required. It was therefore unsafe.

4. Although strictly unnecessary after allowing the liability appeal, the remedy appeal would also have succeeded. The correct counterfactual was whether, absent the unfairness or discrimination, dismissal would have occurred and, if so, when. Employer culpability in causing or exacerbating incapacity may bear on fairness and future adjustments. It cannot exclude the possibility of a fair or non-discriminatory dismissal for all purposes of compensation.

• Employment Appeal Tribunal: allowed the employer’s appeals against the liability and remedy judgments: [2015] UKEAT 0010_15_2310.
• Cardiff Employment Tribunal: held the dismissal unfair and discriminatory under section 15 of the Equality Act 2010, and awarded £238,216.37 without a Polkey reduction.