24 October 2014 #Employment
The EAT has found that there was no disability discrimination based on a failure to make reasonable adjustments and that it was fair to dismiss a disabled employee who had received a final written warning for repeated absences and where the absence was unlikely to improve. In General Dynamics Information Technology Ltd v Carranza UKEAT/0107/14, the employee had received a final written warning for repeated absences, about 90% of which had been disability-related. He was then dismissed following further absence caused by a shoulder injury that was unrelated to his disability.
The majority of the ET found (judge dissenting) that it would have been reasonable for the employer to have disregarded the final written warning. It had disregarded disability-related absence in the past and it would have been reasonable for it to do so again. The tribunal also held unanimously that the dismissal was unfair because a reasonable employer would not have taken the final warning at face value but would have looked at the circumstances of the warning in context.
The EAT rejected the argument that the employer should have ignored the final written warning when deciding whether to dismiss the employee for the later absence. In the EAT`s view, the mental process of disregarding a warning was not the kind of "step" that is contemplated by the Equality Act 2010. In any event the tribunal had set out no proper basis for concluding that it was reasonable for the employer to disregard the warning, and the fact that it had shown leniency in the past did not mean it was legally bound to do so again regardless of the business impact.
The EAT also rejected the argument that the dismissal was unfair because the employer had failed to reconsider at the time of dismissal whether the earlier final written warning had been justified. There was nothing to suggest the warning had been given in bad faith or was manifestly inappropriate. Hence, there was no need to reopen the matter.