Thomson v Imperial College Healthcare NHS Trust

The duty to make reasonable adjustments under Equality Act 2010 s.20 requires a proved causal link between the disability and the substantial disadvantage complained of.

Separate impairments should not be aggregated unless pleaded and supported by evidence showing they co‑exist and are relevant to the matter in issue.

An employer’s failure to follow its disciplinary procedure or to vest decision‑making in someone with appropriate experience may render dismissal unfair.

The claimant, a consultant neonatologist, was summarily dismissed after a disciplinary hearing that upheld three allegations of threatening or disrespectful conduct. She pursued claims for unfair dismissal and for breach of the duty to make reasonable adjustments under the Equality Act 2010, relying primarily on dyslexia and asserted neurodiversity. The ET dismissed the reasonable‑adjustments claim but found the dismissal unfair and reduced compensation for contributory fault. The claimant appealed the reasonable‑adjustments finding. The respondent cross‑appealed the ET’s findings on unfair dismissal, Polkey and contributory fault.

The questions before the EAT were (a) whether the ET erred in treating the pleaded disability as dyslexia and in refusing to aggregate depression with dyslexia, and (b) whether the ET erred in finding the dismissal procedurally and substantively unfair and in its approach to Polkey and contributory fault.

1. Disposition: The claimant's appeal on the reasonable‑adjustments point is dismissed. The respondent's cross‑appeal against the ET's finding of unfair dismissal and related adjustments is dismissed. (See paras [22]–[25]; [26]–[47].)
2. Reasonable adjustments and pleaded disability: The ET correctly confined the claim to the disability advanced in the ET1 and at the CMD, namely dyslexia. Amendments to add or aggregate depression were not pleaded and were unsupported by evidence that depression existed at the material time. Aggregation requires pleading and evidential support. On the facts there was no established link between dyslexia (or neurodiversity) and the alleged bullying conduct. (See paras [22]–[25]; [57].)
3. Construction of medical reports: The ET’s reading of Professor Harrison’s letters was reasonable. Those letters do not answer the question that dyslexia caused the bullying. They, at most, identify anxiety and depression arising from the investigatory process. That chronology undermined any contention that depression pre‑dated or caused the conduct. (See paras [16], [23], [24].)
4. Procedural fairness and suitability of decision‑maker: The ET correctly applied the band of reasonable responses and assessed both process and substance. The appointment of Dr Palazzo, who lacked training or experience in chairing disciplinary hearings of this gravity, and his material misapplication of the employer's disciplinary procedure, rendered the dismissal procedurally unfair. A decision‑maker must be equipped with ability and experience commensurate with the case. Compliance with a written procedure does not immunise an employer from a finding of unfairness where the procedure has been misapplied. (See paras [26]–[31]; [41].)
5. Recall of chair for further evidence: The ET’s refusal to recall Dr Palazzo was a case management decision. No evidence was proffered to show that recall would have produced material evidence that he had appropriate training. The refusal did not render the ET’s decision unsafe. (See paras [32]–[43].)
6. Substance of dismissal: The ET correctly concluded that the incidents were not, of themselves, gross misconduct and that the respondent could not permissibly elevate them into gross misconduct by reference to context and consequences unless a final written warning had already been given. The misapplication of the procedure placed the dismissal outside the range of reasonable responses. (See paras [30]–[31]; [44]–[45].)
7. Polkey reduction: The ET properly engaged with the required speculative exercise but concluded there was insufficient evidential basis to determine, with confidence, that a fair process would have produced dismissal and therefore made no Polkey reduction. That conclusion was permissible. (See paras [35]–[36]; [46].)
8. Contributory fault: The ET’s assessment of contributory fault and the 30% deduction was within its discretion and not perverse. Authorities on contributory fault support deference to the ET’s evaluative judgment. (See para [47].)
9. Orders: The cross‑appeal is dismissed. The appeal on reasonable adjustments is dismissed. No interference with the ET’s orders on remedies, Polkey or contributory deduction. (See concluding paras.)

• Employment Tribunal: Claimant's reasonable‑adjustments claim dismissed; unfair dismissal found; 30% deduction for contributory fault. (Decision issued 18 October 2013; hearing 16 September 2013) (referred at paras [1]–[2].)
• Employment Appeal Tribunal: Appeal and cross‑appeal heard 29–30 January 2015; EAT dismissed the claimant's appeal and the respondent's cross‑appeal. ([2015] UKEAT 0218_14_3001)