In Ali v Torrosian and others (t/a Bedford Hill Family Practice) the Employment Appeal Tribunal overturned a tribunal’s decision that there was no discrimination arising for disability. The case shows that while the tests for unfair dismissal and discrimination are legally different, similar considerations apply when a tribunal is considering a dismissal for long-term absence.
Dr Ali worked as a GP for the Bedford Hill Family Practice. Following a heart attack he went on long-term sick leave and it was accepted that his on-going heart condition was a disability for the purposes of the Equality Act 2010. A medical report suggested that although he would never be able to return to full-time work, a phased return to part-time work would be possible. He was then signed off work with a shoulder injury for six weeks. When his medical certificate expired he was dismissed. He brought claims of unfair dismissal and disability related discrimination.
Employment tribunal decision
The tribunal upheld the claim of unfair dismissal on a procedural basis as the employer had failed to consider the recommended return to work on a part-time basis before dismissing Dr Ali. However, it rejected the claim of disability discrimination on the basis that the employer had justified its actions with the legitimate aim of ensuring the best care was provided to patients.
The EAT was critical of the tribunal which it considered had applied the legal test for justifying disability related discrimination incorrectly. While it was right to look at the impact of Dr Ali’s absence in terms of financial and operational costs and continuity of patient care, it had crucially failed to consider if there was a less onerous way of achieving those legitimate aims. At the time of the dismissal, Dr Ali had provided medical evidence that he was able to return on a part-time basis, the failure of the employer to discuss and consider this rendered the dismissal unfair and, potentially discriminatory as well. The EAT sent the case back to the same tribunal to assess the question of proportionality.
This case is a good illustration of why employers so often fall foul of the law when dismissing a disabled employee for long-term absence; they press the eject button too soon, before they have properly considered all the evidence.
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Dealing with a long-term sickness absence issue? Worried you might be dismissed? Or not sure if you or your employee is protected by disability discrimination laws? Then talk to our employment law specialists today. We’ll help you figure out the answers and the best way forward for you.