The Secretary of State for Justice v Edwards

In a capability dismissal for prolonged absence, the question is whether dismissal fell within the range of reasonable responses in the particular circumstances. Where the employer dismisses for an asserted absence of foreseeable return, it must properly engage with occupational-health evidence indicating a foreseeable return and make reasonable enquiries into the likely timing and effect of that evidence.

The statutory justification inquiry under section 15 of the Equality Act 2010 is distinct. It requires the tribunal to make its own critical and objective assessment, balancing the discriminatory effect of dismissal against the employer’s organisational needs. The same facts may be relevant to both inquiries without conflating their different legal tests.

The claimant, a prison complaints clerk, had been absent with stress-related disability since September 2016. Occupational-health advice stated that he could return after the resolution of his employment tribunal proceedings and a short period of recuperation.

The Cardiff Employment Tribunal upheld his claims for unfair dismissal and disability discrimination under section 15 of the Equality Act 2010. It found that the employer had dismissed him for capability on the erroneous basis that there was no foreseeable return to work. It also found that the employer had not made sufficient enquiries about the duration of the proceedings, the impact of disability, or redeployment.

The Secretary of State appealed, contending that the Tribunal had wrongly required it to await the conclusion of the proceedings, assumed a return within four weeks, and conflated unfair-dismissal and discrimination tests.

1. Appeal dismissed. Reading the Employment Tribunal’s reasons fairly and as a whole, it correctly identified and applied the distinct legal tests for unfair dismissal and section 15 of the Equality Act 2010.

2. On unfair dismissal, the issue was whether dismissal of this employee in these circumstances was within the range of reasonable responses. The Tribunal was entitled to find it was not. The stated reason for dismissal was an absence with no foreseeable return, but the employer’s occupational-health evidence indicated a foreseeable return after resolution of the proceedings and recuperation. The employer had failed to obtain or consider important further information about when that event might occur.

3. The Tribunal had not held that an employer can never dismiss fairly while tribunal proceedings remain unresolved. Nor had it found that a fixed return date was established. Its material finding was that the employer had closed its mind to the possibility that an improvement in the claimant’s disability-related stress and anxiety could permit meaningful engagement with workplace issues and a return to work.

4. The Tribunal was also entitled to take account of the failure properly to consider disability and redeployment, the claimant’s nil-pay status, and the limited evidence of the actual operational burden of retaining him.

5. Section 15 required an objective and critical proportionality assessment, rather than the range-of-reasonable-responses inquiry applicable to unfair dismissal. Although some facts were relevant to both issues, the Tribunal separately assessed justification and permissibly concluded that the employer had not shown dismissal to be a proportionate means of achieving its legitimate organisational aim.

• Employment Appeal Tribunal: Dismissed the employer’s appeal and upheld the Employment Tribunal’s findings of unfair dismissal and discrimination under section 15 of the Equality Act 2010.
• Employment Tribunal, Cardiff: Upheld the claimant’s unfair-dismissal claim and his claim that dismissal was disability discrimination. It dismissed the remaining harassment, breach-of-contract, and discrimination claims.