Knightley v Chelsea & Westminster Hospital NHS Foundation Trust

The Employment Appeal Tribunal dismissed the claimant's appeal against a full Employment Tribunal decision. The Employment Tribunal had found that the respondent breached the duty to make reasonable adjustments under section 20 Equality Act 2010 by failing to grant a short extension to an appeal deadline (a provision, criterion or practice disadvantage) but had also found that the claimant's dismissal for capability was within the range of reasonable responses and therefore fair under section 98 Employment Rights Act 1996 and not discrimination arising from disability under section 15 Equality Act 2010. The EAT held that a finding of a breach of the reasonable adjustments duty does not automatically convert into liability under section 98 ERA or section 15 EqA; each statutory test is distinct and must be applied separately to the facts. The ET had applied the correct legal tests, given adequate reasons and properly concluded that the dismissal was proportionate and fair despite the procedural failing identified under section 20, so the appeal was dismissed.

Background and parties. The claimant, Ms Knightley, was employed as Lead Midwife for Mental Health by the respondent NHS Trust from 2009 until dismissal on capability grounds effective 5 April 2018. The respondent accepted the claimant's anxiety, stress and reactive depression amounted to a disability under the Equality Act 2010. The claimant had lengthy and intermittent sickness absences and a protracted period of long-term sickness which was managed under the respondent's sickness absence procedures.

Nature of the claim and relief sought. At first instance the claimant brought claims for unfair dismissal, discrimination arising from disability under section 15 EqA and multiple complaints under section 20 EqA (failure to make reasonable adjustments). The ET dismissed unfair dismissal and the section 15 claim but upheld one complaint under section 20 relating to refusal to extend the appeal deadline and awarded a provisional £3,000 for injury to feelings.

Procedural history. The ET (full Tribunal at London Central after a seven-day hearing) produced detailed Reasons on 11 March 2020. The claimant obtained permission to appeal to the EAT (order of Bourne J dated 4 January 2021) and the appeal was heard by Linden J on 9 November 2021.

Issues framed. The appeal raised whether the ET was obliged to conclude that the section 20 breach rendered the dismissal unfair under section 98 ERA; whether the ET gave adequate reasons for finding the dismissal fair and proportionate given the section 20 finding; and whether the ET improperly relied on the conclusion that the claimant's appeal would have failed (a Polkey-type issue). The appellant also argued that procedural unfairness would make the dismissal disproportionate for the purposes of section 15 EqA.

Court's reasoning and outcome. The EAT reviewed the relevant legal frameworks: the reasonable adjustments duty (section 20 EqA), discrimination arising from disability (section 15 EqA) and unfair dismissal (section 98 ERA). The EAT emphasised that the statutory tests differ: section 20 requires the tribunal to state what reasonable step should have been taken; section 15 is an objective proportionality assessment; section 98 asks whether dismissal was within the range of reasonable responses. The EAT held that the ET correctly found that the appeal deadline requirement was a provision, criterion or practice that placed the claimant at a substantial disadvantage and that a short extension or acceptance of a late appeal would have been a reasonable adjustment. The EAT also held that the ET properly applied the range of reasonable responses test and, on the facts (long absences, impact on a high-risk service, lack of prospect of return, medical evidence), reasonably concluded dismissal was fair and proportionate. The ET had given adequate reasons, and reliance on the view that an appeal would not have succeeded did not amount to unlawful Polkey reasoning because the Tribunal found the dismissal substantively fair, not merely procedurally defective. The EAT dismissed the appeal.

Appeal dismissed. The EAT held that the Employment Tribunal correctly applied distinct legal tests for section 20 Equality Act 2010 (reasonable adjustments), section 15 Equality Act 2010 (discrimination arising from disability) and section 98 Employment Rights Act 1996 (unfair dismissal). Although the Tribunal correctly found a section 20 breach in not extending the appeal deadline, that discrete finding did not automatically render the dismissal unfair or disproportionate; on the full facts the Tribunal was entitled to conclude the dismissal was within the range of reasonable responses and proportionate, and it gave adequate reasons. The appeal was therefore dismissed.

Full Employment Tribunal (London Central) after seven-day hearing; ET Reasons sent 11 March 2020; permission to appeal to the EAT granted by Bourne J (order dated 4 January 2021); appeal heard in the Employment Appeal Tribunal resulting in judgment [2022] EAT 63 (9 November 2021).