Reasonable adjustment duty continues during notice period
The case Fox v British Airways [2015], which went to the Court of Appeal in 2013 and recently returned the Employment Appeal Tribunal, concerns long-term sickness absence and reasonable adjustments. It is a useful reminder to employers that their obligations regarding these two issues continue during an employee’s notice period.
The claimant had a serious accident at work in 1995 and broke his back. This resulted in him taking several months off work and had an ongoing impact on his attendance in the following years, ultimately resulting in him being transferred to a different role in 2008. His absences continued and it was agreed between employer and employee that he was disabled. He began a period of absence in March 2010, and at the beginning of this period there was no indication of when he might be able to return to work. The employer asked for advice from the occupational health department and the medical report indicated that the claimant was unlikely to be able to do his job for the foreseeable future.
In June 2010, the employer decided to give the claimant notice that his employment would terminate because of incapability at the end of a three-month notice period if he remained unfit to attend work. He was offered the right to appeal against the dismissal decision within seven days, which he failed to do.
During his notice period, the claimant’s condition improved and he was scheduled to have an operation shortly after his notice was due to expire. This prompted him to appeal the dismissal decision even though he was out of time as he felt that his circumstances had changed. The claimant’s medical consultant also provided an updated opinion relating to the possibility of him returning to work, which was brought to the employer’s attention although not communicated to his operational manager. The employer declined to extend the claimant’s notice period to take account of the new evidence and his dismissal took effect in September 2010.
Tribunal
Fox died shortly after his dismissal and his claim against his employer was pursued by his father. He brought claims for unfair dismissal, disability-related discrimination and an alleged failure to make reasonable adjustments, all of which were rejected by an employment tribunal.
On appeal, the Employment Appeal Tribunal held that:
- The fairness of a dismissal should be judged at the time of the dismissal, not the time that the initial decision to dismiss the employee was made. Where circumstances have changed in the interim, those changes - if not properly considered - could make the initial decision to dismiss questionable
- Failing to allow an appeal outside of a procedural time limit could amount to a provision, criterion or practice (PCP) and a failure to make reasonable adjustments under the Equality Act 2010
- A dismissal on its own is unlikely to amount to a PCP but something leading up to a decision to dismiss, for example, the application of an absence management procedure, could be a PCP and could give rise to a claim for discrimination if it places the employee at a substantial disadvantage compared to non-disabled employees.
Comment
This case demonstrates that employers should revisit a decision to dismiss an employee if new evidence comes to light during the employee’s notice period, as a failure to do so could take the dismissal outside the band of reasonable responses and so make it unfair. Equally, where an employee is, or may be, disabled, it is advisable for employers to consider any appeal seriously, even if it is out of time, if the reason for the employee’s delay could be linked to his or her disability.
Lauren McLardie is an associate, and Paul Mander is head of the employment team, at Penningtons Manches
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