Simmonds v Salisbury NHS Foundation Trust

The Court of Appeal dismissed the appellant's challenge to the Employment Appeal Tribunal's refusal of permission to appeal the Employment Tribunal's dismissal of claims for disability discrimination (including failure to make reasonable adjustments under section 20 of the Equality Act 2010 and discrimination under section 15) and unfair dismissal. The court accepted the Employment Tribunal's factual findings that, after extensive attempts at separation, investigation and mediation, there was an irretrievable breakdown in the working relationship between the claimant and a colleague, and that the employer's choice to dismiss the claimant rather than the colleague was within the range of reasonable responses.

The court applied the high threshold for intervention on appeal: an appellate court may only disturb an Employment Tribunal's conclusion on reasonableness or justification where the decision was perverse or involved an error of law. The appellant did not establish perversity or such an error. The Court also rejected arguments that the Tribunal should have treated dismissal of the colleague as a reasonable adjustment or that the claimant had been disabled earlier than the Tribunal found; it accepted the Tribunal's reliance on medical evidence and its assessment of the parties' conduct and capabilities. Finally, the court held that the claimant did not suffer an unfair hearing because of her representative's lack of professional advocacy.

Background and parties: The appellant, a medical photographer employed by the respondent Trust, claimed disability discrimination (including failure to make reasonable adjustments under section 20 of the Equality Act 2010, direct discrimination and section 15 discrimination) and unfair dismissal following an employer decision to dismiss her for an irretrievable breakdown in working relationships with a colleague, Ms Jones. The Employment Tribunal dismissed the claims after detailed factual findings and the Employment Appeal Tribunal (Simler J) refused permission to appeal. The appeal reached the Court of Appeal under rule 3(10) of the Employment Appeal Tribunal Rules 1993 (as amended).

Nature of the claim / relief sought: The appellant sought to challenge the Employment Tribunal's dismissal of her claims for disability discrimination and unfair dismissal, including a contention that the Trust should have dismissed the colleague as a reasonable adjustment and that the claimant had been disabled earlier than found by the Tribunal.

Issues framed by the court:

• Whether the Employment Tribunal's conclusions (that the claimant's dismissal was not discriminatory or unfair and that no unreasonable failure to make reasonable adjustments had occurred) were perverse or infected by error of law.
• Whether the Tribunal erred in its finding as to the onset date and nature of the claimant's disability.
• Whether the Tribunal's process was unfair because of the claimant's representative's lack of professional competence.

Court's reasoning and disposition: The Court of Appeal emphasised the limited scope for appellate interference with findings of fact and evaluations of reasonableness made by an expert tribunal. It concluded that the Employment Tribunal had carefully analysed the history: prior bullying findings against Ms Jones, subsequent reduction of sanction, the parties' efforts at separation and mediation, occupational health and external investigation findings, and the claimant's marked phobic reaction which prevented successful mediation and continued contact. The Trust faced a difficult choice and its decision to dismiss the claimant rather than Ms Jones was within the range of reasonable responses; it was not perverse to uphold that decision. On the timing of disability, the court accepted the Tribunal's reliance on medical evidence in fixing the onset in December 2011 and found no basis to infer disability throughout the employment absent supporting medical evidence. On the fairness of the hearing, the court held that although the claimant's representative lacked professional advocacy skills, the Tribunal took steps to identify and address the issues and there was no unfairness sufficient to amount to an error of law. The appeal was dismissed.

Appeal dismissed. The Court held that the Employment Tribunal's findings of fact and evaluation of the employer's decision were entitled to deference and not perverse or legally erroneous; the Tribunal was entitled to rely on the medical evidence in fixing the onset of disability and the hearing was not unfair despite the claimant's non-professional representative.

Appeal to the Court of Appeal from the Employment Appeal Tribunal (Simler J), which had rejected the appellant's proposed appeal against the Employment Tribunal's decision dismissing claims of disability discrimination and unfair dismissal. No neutral citation for the Employment Tribunal or EAT decision is stated in the judgment.