The Employment Appeal Tribunal has held that discrimination arising from disability could not be objectively justified where a tribunal failed to consider part-time working as an alternative to dismissal.
The employee, in this case, was a GP and went on long-term sick leave after suffering from a heart attack. His ongoing heart condition amounted to a disability.
A medical report confirmed that it was unlikely that he would ever be able to return to work full-time, but recommended that he return on a phased, part-time basis.
He then suffered a shoulder injury and was signed off work for a further six weeks. When his sick note expired he was dismissed on the ground of capability.
He brought claims for unfair dismissal and disability discrimination. The tribunal ruled that his dismissal was procedurally unfair because the employer had failed to consider his return to work on a part-time basis. However, it rejected his disability claim saying that while his dismissal amounted to unfavourable treatment and arose in consequence of his disability, it was justified by the legitimate aim of ensuring that the best possible care was provided to patients.
Allowing a subsequent appeal, the Employment Appeal Tribunal said that while the tribunal had considered the impact of his absence in terms of the practice’s financial and operational costs and the effect on continuity of patient care, it had failed to consider the possibility of him returning on a part-time basis as a less onerous way of the practice achieving its legitimate aim.
The disability discrimination claim has been remitted to the tribunal who will now have to reconsider the question of proportionality.
Case reference: Ali v Torrosian and others (t/a Bedford Hill Family Practice)