Employment Appeal Tribunal
The appellant employer (C) appealed against a finding that it had unfairly dismissed its employee (H) for a reason related to her disability. H cross appealed against the award of compensation made to her. H had been employed by C as the manager of a care home. The local authority in charge of regulating the home had brought a number of concerns to C's notice. C held a meeting with H in which criticisms were raised, including staff competence, poor health and safety practice and an inadequate management structure. H took sick leave immediately after the meeting and did not return to work again, her doctor stating that she was suffering from acute stress reaction. Nine months later H was asked to attend a disciplinary hearing, but did not do so. She was dismissed for alleged gross misconduct. H brought a claim for unfair dismissal. The employment tribunal found that the dismissal for gross misconduct was procedurally unfair and that H's stress induced disability was a factor in the dismissal. It awarded compensation under the Disability Discrimination Act 1995, including compensation for two years' future losses based on H's future employment prospects and her wish to retire at 65. C contended that the tribunal had misdirected itself as to the weight to be given to H's disability and that that finding was inconsistent with its finding that the dismissal was because of gross misconduct. In relation to compensation, H argued that the award for future losses had not been based on evidence before the tribunal.
HELD: dismissing the appeal and allowing the cross appeal, that (1) the tribunal had not been wholly wrong in holding that where "disability was a factor", then a dismissal would be contrary to s.5(1) of the Act. Although that was technically a misdirection, it was nevertheless sufficiently supported by authority to be permissible, Clark v TDG Ltd (t/a Novacold Ltd)  2 All E.R. 977 and British Sugar Plc v Kirker  I.R.L.R. 624 applied. The term "relates to" as used in the Act was a broad one. It was not a misuse of language to say that if disability was a factor in the decision to dismiss, then the dismissal was for a reason related to the disability. However, the degree of relationship between the dismissal and the disability had to be more than token or minimal. Although the tribunal did not ask itself the right questions, it had in fact applied a more stringent test, which H had fulfilled. The dismissal related to her absence through illness, not her misconduct, which had been known about for a long time before disciplinary proceedings were brought. The tribunal had therefore reached a decision in relation to disability which was unarguably right despite the minor misdirection. There was no inconsistency between that finding and its finding as to gross misconduct, since the former related to the decision to dismiss and the latter to the reason for dismissal. Although the label attached to the dismissal was gross misconduct, it was clear that the decision to dismiss at the time it was taken related to H's absence and therefore her disability. (2) The issue of compensation for future loss was remitted to the tribunal as it had taken account of factors on which it had not heard evidence in reaching its decision.
William Meade (Senior Clerk)