Expert Witness Journal Dec 24 - Journal - Page 38
Should Dismissals for DisabilityRelated Absences be Pleaded
as Direct Discrimination
By Robin Pickard - 3PB Barristers
Petros is meeting with her tomorrow and will
discuss that this is not sustainable and will give her
a timeframe in which to complete all her paperwork
and outstanding tasks as she is behind with these.
As we have permanent worker starting Petros will
now look to give Poppy her notice as position will no
longer be available.”
South Gloucestershire Council v Ms Hundal [2024]
EAT 140
References to [x] are to paragraphs in the EAT’s
judgment.
1. South Gloucestershire Council v Ms Hundal [2024]
EAT 140 concerns the Employment Tribunal (“ET”)’s
decision to uphold complaints of direct discrimination
and discrimination because of something arising in
consequence of disability following the Claimant’s
dismissal due to disability-related absences.
7. The Claimant was subsequently dismissed.
Before the ET
8. The ET found that Mrs Desmond had decided to
terminate the Claimant’s position during the Meeting
[9]. Mrs Desmond’s rationale for dismissal was set out
at para 8 of her witness statement, which reads as
follows:
2. This case provides a useful reminder of the
distinction between sections 13 and 15 of the Equality
Act 2010 (“EqA”) clarifies that a failure to make reasonable adjustments (“FMRAs”) may inform the ET’s
analysis of justification under s. 15(1)(b), notwithstanding that a claimant has not brought a separate
claim for FMRAs.
“The decision to terminate Poppy’s contract was made
in the Supervision meeting I had with Petros on 17
October. As I was Poppy’s line manager’s manager I
had little direct contact with her. The AYSE whose
post Poppy was covering was shortly to start work and
we no longer needed Poppy to cover the post. There
were two other locums in the team at the time, one
of whom had been working with the Council for several years entirely satisfactorily, and the other, although recruited at a similar time to Poppy had
proven more reliable. One locum was no longer
needed because of the arrival of the AYSE and there
was no reason to terminate one of the other locums
rather than Poppy. Even had Poppy’s absences not
caused problems her contract would still have been
terminated. Had she been an exceptional social
worker I might have tried to find another role for her
but she was not – she was good but not that good.
The decision was reached in discussion with Petros but
at the end of the day it was my decision as the Head
of the Service.”
Factual background
3. The Claimant was disabled by reason of
endometriosis. She had a number of absences as a result of her disability and was ultimately dismissed due
to her attendance record.
4. The Claimant was an agency social worker who
joined the Respondent on 8 July 2019 under a fixed
term contract, which was due to end on 6 September
2019 [4]. The Claimant was line managed by Petros
Careswell.
5. Despite having absences during the Claimant’s first
stint of employment, on 6 September 2019 her
engagement was extended to 29 December 2019 [5].
The Claimant had further absences after her contract
was extended, e.g., between 10 to 15 October 2019
(which was her longest period of absence) (“the
Absence”) [6-7].
6. At a supervision meeting on 3 October 2019, the
ET noted that the Respondent did not refer “to [the
Claimant’s] health affecting the quality of her work”. However, following the Absence, on 17 October 2019, Mr
Careswell and Caryn Desmond (Social Care Locality
Service Manager) had a meeting (“the Meeting”),
where the following was said about the Claimant [8]:
9 The ET found (at para 55 of its judgment) that Mrs
Desmond’s reasoning was flawed, as the Claimant was
not covering a specific permanent post [9]. The ET
went on to find that, at the outset of the Claimant’s
employment, “Mrs Desmond had been keen to secure the
Claimant to a permanent post”.
10. The ET stated (at para 56 of its judgment) that the
Respondent’s premise was that one of the three
locums was no longer needed with the arrival of a permanent member of staff. The question was then
whether the reason(s) given for selecting the Claimant,
as opposed to one of the other locums, was discriminatory. In summary, paras 57-58 of the ET’s judgment
held that:
“… [she] continues to have sporadic sickness which
is a significant issue due to impact on children and
families and on colleagues and Petros. She can be
high maintenance but does have skills in working and
engaging with families, she presents as very competent however files do not reflect this as she is behind in
her paperwork. Families really like her, however, she
is a locum who is not currently able fully fulfil her role.
EXPERT WITNESS JOURNAL
36
DECEMBER 2024
