Anderson v Anderson & Ors

An Employment Tribunal may determine the true reason for dismissal from all the evidence and permissible inferences. The reason need not precisely match either party’s formulation. A genuine breakdown in working relationships can amount to some other substantial reason, although procedural fairness remains a separate question.

A Polkey assessment may be made where the issue was live and the Tribunal has sufficient factual material. It necessarily involves prediction, but the reasons and factors for the assessment must be apparent. A disabled employee’s general wish to return to work does not, on these facts, trigger the duty under Equality Act 2010 section 20 while contemporaneous medical certification states that the employee is unfit for all work and there is no contrary indication supporting a phased or adjusted return.

The claimant had worked for almost 37 years in his parents’ family joinery and funeral-directing business. After a serious head injury, he was absent from work from December 2011. His GP repeatedly certified him unfit for work. The claimant nevertheless sought to return to work and maintained that reasonable adjustments would have enabled this.

In September 2014, following the acceptance of the claimant’s son’s higher offer to buy the funeral business, family relationships became acrimonious. The Employment Tribunal held that the claimant was dismissed for some other substantial reason, namely the relationship breakdown. It found the dismissal procedurally unfair, made a 60% Polkey reduction, and dismissed claims under sections 13, 15 and 20 of the Equality Act 2010.

The claimant appealed the findings on the reason for dismissal, the Polkey deduction and the disability-discrimination claims.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the real reason for dismissal was a genuine belief that the claimant and his son could not work together after the sale of the business. A Tribunal must identify the actual reason from the whole evidence. It may reach a conclusion which does not precisely coincide with either party’s characterisation. The relationship issue had been pleaded, explored in evidence and addressed in submissions.

2. The finding was not perverse. The events of 8 and 9 September 2014, the son’s stated refusal to work with the claimant, the claimant’s response, and the subsequent rupture with his father provided an evidential basis for the inference. A relationship breakdown can be a potentially fair some-other-substantial-reason dismissal. Whether the employer took steps to repair the relationship instead concerns fairness. The Tribunal had, in any event, found the dismissal unfair because no procedure was followed.

3. The 60% Polkey deduction was sustainable. Both parties had addressed the issue before the Employment Tribunal. The Tribunal could predict what a fair procedure would probably have produced by reference to its detailed findings. Its conclusion that dismissal was more likely than not, but not inevitable, was within the permissible evaluative and speculative exercise described in [2007] ICR 236.

4. The Tribunal was entitled to prefer the contemporaneous GP fit notes and other evidence to retrospective expert opinion when deciding that the claimant was unfit for work throughout the relevant period. It gave adequate reasons for resolving the conflicting evidence.

5. On the particular facts, the duty to make reasonable adjustments under section 20 had not arisen. The claimant’s unsupported assertions that he wished to return to work conflicted with continuing certification that he was unfit for work, including for phased return. Consultation would have been beneficial, but there had been no failure actually to make an adjustment at a stage when the duty was triggered. The alternative issue concerning the PCP was academic.

6. The direct-discrimination claim failed because there was no evidential basis for finding that delay in a return to work was treatment because of disability. The section 15 claim also failed. Although the respondents’ failure to make enquiries was unfavourable treatment, the Tribunal was entitled to find that it was not because of fatigue, reduced stamina, anxiety or fear of heights arising from the disability.

7. The case was remitted to the Employment Tribunal for a remedies hearing on the unfair-dismissal finding.

• Employment Appeal Tribunal: Appeal dismissed. The Employment Tribunal’s findings on reason for dismissal, the Polkey deduction and claims under the Equality Act 2010 were upheld. The matter was remitted for remedy.
• Employment Tribunal: Judgment dated 14 June 2016. The Tribunal found the dismissal procedurally unfair, subject to a 60% Polkey deduction, and dismissed the disability-discrimination claims.