C Knightley v Chelsea and Westminster Hospital NHS Foundation Trust

A failure to make a reasonable adjustment to a dismissal procedure does not automatically make the dismissal unfair or disproportionate. The statutory tests under section 20 and section 15 of the Equality Act 2010 and section 98 of the Employment Rights Act 1996 have different ingredients and must be applied separately to the tribunal’s factual findings.

An appeal is part of the procedure for dismissal. An unreasonable failure to provide an effective appeal may render a dismissal unfair, but does not inevitably do so. Overall fairness remains a matter for the range of reasonable responses, assessed in all the circumstances. A dismissal may remain fair and proportionate where the prior procedure was thorough, the case for dismissal was compelling, no realistic alternative existed, and an appeal could not have affected the outcome.

The claimant, a disabled employee, was dismissed on capability grounds after prolonged sickness absence and repeated statements that she could not return to work for the respondent or within the NHS in the foreseeable future.

The Employment Tribunal at London Central found that the respondent should have extended the ten-working-day deadline for an appeal against dismissal. It upheld that reasonable-adjustments complaint under section 20 of the Equality Act 2010. It nevertheless dismissed the claims for unfair dismissal and discrimination arising from disability under section 15.

The claimant appealed, contending that the refusal of an effective appeal necessarily, or inadequately explained why it did not, make the dismissal unfair and disproportionate. She also alleged an impermissible reliance on the conclusion that an appeal would have failed.

1. Appeal dismissed. The Employment Tribunal had applied the correct legal tests and adequately explained why dismissal was fair and proportionate despite the failure to make the procedural adjustment concerning the appeal deadline.

2. The claims under section 20 and section 15 of the Equality Act 2010, and unfair dismissal under section 98 of the Employment Rights Act 1996, are distinct statutory causes of action. Their legal conclusions must not be read across automatically. The same findings of fact may bear on more than one claim, but each statutory test must be separately applied.

3. For reasonable adjustments, the tribunal decides for itself whether a step ought reasonably to have been taken to avoid the disabled person’s substantial disadvantage. For unfair dismissal, the question under section 98(4) is whether dismissal was within the range of reasonable responses in all the circumstances. A finding that an extension should have been granted did not itself determine the fairness of the dismissal.

4. An appeal is part of the dismissal procedure: see [2006] ICR 1602. Its absence may make a dismissal unfair, but does not do so automatically. The tribunal was entitled to assess the procedure as a whole. It had considered the absence of an effective appeal, but found a thorough prior process and an exceptionally strong capability case. The claimant had been absent for a lengthy period, could not return in the foreseeable future, identified no adjustment enabling a return, and her absence materially affected a high-risk service.

5. The tribunal did not commit the Polkey error. It did not find a procedurally unfair dismissal and then deny liability because dismissal would have occurred anyway. It found the dismissal procedurally and substantively fair. Its conclusion that an appeal would inevitably have failed explained why the missing appeal did not undermine overall fairness.

6. Likewise, proportionality under section 15 is an objective and distinct inquiry. A failure to make an adjustment may support a finding of disproportionality where the adjustment would have prevented or minimised the unfavourable treatment. Here an appeal would not have prevented the dismissal or reduced its likelihood. Given the legitimate service and workforce aims, the absence of realistic alternatives, and the strength of the capability case, dismissal remained proportionate.

• Employment Appeal Tribunal: dismissed the claimant’s appeal: [2022] EAT 63.
• Employment Tribunal, London Central: upheld one reasonable-adjustments complaint under section 20 of the Equality Act 2010, but dismissed the unfair-dismissal and section 15 claims. Reasons were sent on 11 March 2020.