Discrimination in Dismissal Process does not make Dismissal unfair.

The Employment Appeal Tribunal’s decision in Knightly v Chelsea & Westminster Hospital NHS Trust (2022) is another in a line of cases on the interrelation of the range of reasonable responses test in unfair dismissal and the proportionality test in discrimination cases.

The disabled claimant who was dismissed after a long sickness absence claimed that she had been unfairly dismissed, had not had reasonable adjustments made for her, and and that the dismissal was discrimination arising from disability.

Having read the judgment then I understand how the discrimination arising from disability was made with section 15’s emphasis on substantive outcomes rather than process.

However, I cannot help but think that the decision on unfair dismissal is wrong and, if not wrong according to the law, then the law is wrong.

To understand the issue it is necessary to go behind the judgment to the background facts. I take it as given that the dismissal itself was reasonable – some may disagree (the claimant for starters!) but I can see why that decision was taken given the claimant’s admissions on likeihood of returning to work, unavailability of adjustments, and the poor absence history.

However, we know that a integral part of a fair dismissal process is the opportunity to appeal (e.g., as acknowledged by the House of Lords in Tipton). And it is at this point where the decision concerns me. The employer had a two week period for filing an appeal against dismissal, but the claimant was unable to do this because of reasons associated with her disability. This was not merely an assertion but was accepted as a fact by the Tribunal. The claimant appealed out of time and the employer refused to consider the appeal.

There was a finding in respect of this aspect of the case that this was a failure by the employer to make reasonable adjustments and, therefore, this aspect of the employer’s dismissal process was discriminatory.

I accept that there is, as the EAT found, no necessary read-over that a discriminatory dismissal process necessarily results in an unfair dismissal finding (it is not hard, for example, to envisage tangential aspects being discriminatory that do not really affect core fairness principles). However, here, where the discriminatory process is at the very core of the dismissal process (the denial of the actual opportunity to appeal against dismissal being integral to a fair dismissal in nearly all cases) I fail to see how the refusal to consider an appeal is not unreasonable, even applying a range of reasonable responses test.

On the case itself, I think this would be something of a pyrrhic victory in that I do not see that there would be likely to be significant compensatory award for any unfair dismissal finding but, nevertheless, the finding of unfair dismissal would have mattered; instead, this is another of what is a number of recent cases that do not place emphasis on the importance of an independent appeal against dismissal decisions (even if, as here, that appeal would have been very unlikely to have been successful).

Interestingly, there is nothing in the legal findings (on relationship between the jurisdictions) I object to, the problem here is more simple in that an employer actual denial of a right to appeal to an employee in a ‘standard’ dismissal case is ever ‘reasonable’ (by ‘standard’ I mean not senior employee, reliant on finding of legal case type case) and is therefore a s.98(4) ERA 1996 objection only.

Taking a step back from the point of view of pre-issue considerations by a union representative this is another reason why, unfortunately, advancing a case on behalf of a member means advancing cases of multiple breaches because employment tribunals are willing to devalue the importance of even core aspects of fair process; whereas once upon a time in this case, given the low award for an independent RA case, many may have focussed on a unfair dismissal case only. If that was ever an appropriate approach (opinions will vary), it is not anymore.