Disability discrimination – employers beware!

“Employers beware!” says Kat Moody. “The recent employment tribunal case of Ms E Onibere v Rodman Pearce Solicitors Ltd, is a further reminder that employers must acknowledge disabilities of employees and must act in accordance with the laws, not least the Equality Act 2010”.

Ms Onibere was employed as an Assistant Solicitor. She was absent from work following a cancer diagnosis and treatment for a period of 26 weeks, she had intended to return to work although the finer details were to be arranged. Her employer dismissed her on grounds of capability, relying upon her employment contract which read;

“If the employee has been absent from the employment for a period of 26 weeks (whether consecutive or in aggregate) in any period of one year as a result of incapacity.”

The employer took the view that Ms Onibere did not have a disability as she was “cured” and had fully recovered.

Ms Onibere brought a claim against her employer for unfair dismissal, direct discrimination, discrimination arising in consequence of disability, indirect discrimination, and breach of contract.

The tribunal found that the employer had failed to follow proper procedures when dismissing Ms Onibere. The failings were serious procedural failures, which rendered the dismissal sustainably unfair.

Although the tribunal accepted that the employer’s business had suffered a loss during Ms Onibere’s absence (the department she worked for failed to hit its targets and the work had greatly reduced) and that there was a real possibility that had she returned to work, she would have faced redundancy, nonetheless the tribunal found that the dismissal was unfair.

In respect of the claim for discrimination arising in consequence of disability, the tribunal judge at para 148 concluded; “…To dismiss without exploring possible alternatives, such as, engaging in a period of consultation with the claimant to discuss alternatives to dismissing her would have been proportionate. This was a case of a dismissal summarily rather than the respondent considering other means. Summary dismissal was not a proportionate means of achieving a legitimate aim. Accordingly, this claim is well-founded…”

Her employer admitted that he had mistakenly believed that the employment contract entitled him to dismiss Ms Onibere following her lengthy absence and that he did not know at the time that having been diagnosed with cancer, Ms Onibere was a disabled person as defined in the Equality Act 2010.

The employer was ordered to pay Ms Onibere £11,000.00 for injury to feelings together with £2,270.00 interest in respect of her disability discrimination claim plus £3,000.00 for being unfairly and wrongfully dismissed.

A full copy of the reserved judgment can be found here.

A full copy of the remedy judgment can be found here.

Kat concludes “It is essential that if an employer is considering dismissing an employee who has been absent from work, they must explore the possible alternatives available in all the circumstances. Each employee will have different needs. It is imperative to assess the matter independently.  Consider what you, the employer, can do to help your employee return to work. Discuss this with your employee, listen to their suggestions and genuinely give them consideration and If their proposals are not workable, explain why and keep well documented notes of any decision made.”

If you’d like to discuss the contents of this article or any other employment law or HR issue, please call Kat on 0191 567 0465 or email her at: [email protected]

Kat offers assistance on off one issues or is able to provide advice via our RR Protect Employment Scheme for an affordable monthly fixed fee. You can find out more information on this here.

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