Philander v Leonard Cheshire Disability

Conduct and capability may overlap. An employer may reasonably characterise seriously negligent acts or omissions as conduct, even without deliberate wrongdoing, where the employee has personal responsibility, relevant training and the failures are grave. The label attached to the reason for dismissal is not decisive.

Gross negligence may also amount to repudiatory conduct justifying summary dismissal. In direct discrimination claims, an actual comparator must be in materially similar circumstances under section 23 of the Equality Act 2010. The absence of an apt actual comparator does not end the inquiry where the tribunal has also determined the actual reason for the treatment. A finding that the treatment was caused by serious regulatory failings rather than disability defeats a claim under section 13.

The Claimant, a disabled service and registered manager of residential care homes, was summarily dismissed after a CQC inspection and warning notice identified serious failures at Parkside. He brought claims for unfair dismissal, wrongful dismissal and direct disability discrimination.

The Employment Tribunal dismissed all claims. It found that the failures were conduct, constituted gross misconduct, and justified dismissal without notice. It also found that the proposed comparators were not in materially similar circumstances and that the decisions were caused by the CQC findings, not dyslexia.

The Claimant appealed on the classification of the dismissal reason, the contractual basis for summary dismissal, and the comparator exercise under the Equality Act 2010.

1. Appeal dismissed. The Employment Tribunal was entitled to uphold the dismissal as fair, to reject the wrongful dismissal claim, and to dismiss the direct disability discrimination claim.

2. The Tribunal had not mischaracterised the reason for dismissal. Conduct and capability may be separated by a narrow and porous dividing line. Serious negligence may properly be treated as either, depending on the facts. Here, the Claimant held personal legal and managerial responsibilities in a regulated care setting. He had received training, guidance and support, yet the Tribunal found sustained and serious failures for which his dyslexia had no material bearing. The Respondent could reasonably regard those failures as gross negligence and therefore gross misconduct. A capability characterisation would also have been open, but that did not make the conduct characterisation erroneous.

3. The Tribunal’s reasons on wrongful dismissal had to be read with its earlier factual findings. It found the regulatory criticisms accurate and the Claimant significantly at fault for serious omissions, including the management of a diabetic service user. It was entitled to find gross negligence sufficiently serious to be repudiatory conduct, notwithstanding the absence of deliberate wrongdoing. Summary dismissal was therefore justified.

4. The Tribunal was entitled to find that the two actual comparators were not in materially similar circumstances for section 23 of the Equality Act 2010. The CQC criticism of one comparator’s home did not result in a statutory warning notice, while the Respondent did not accept the criticism concerning the other. In any event, the Tribunal did not stop at the comparator issue. It separately found that the decisions to suspend, dismiss and reject the appeal were caused by the CQC report and warning notice, not by disability. That finding defeated the section 13 claim.

• Employment Appeal Tribunal: Appeal dismissed; the Employment Tribunal’s dismissal of all claims was upheld.
• Employment Tribunal, London South: Judgment and Reasons sent on 11 May 2017. The Tribunal unanimously dismissed the claims for unfair dismissal, wrongful dismissal and disability discrimination.