Welcome to our case of the week update, this week’s case asks the question; Is dismissing an employee for failing to attend court hearings fair? For anyone that missed last week’s update, wherein an RAF Legal Officer brought a claim for victimisation, you can find that here. Now, onto our case this week!

The Claimant in this case, Mrs Williams, worked as a social worker at the Respondent, Newport City Council, since 2011. As part of the fostering team’s responsibilities, they are required to perform viability assessments – assessments of the suitability of individuals to care for a particular child in the fostering process. Such assessments could be challenged in a family court. While it was not ordinary for the Claimant to attend these court proceedings as part of her job role, she was asked to attend a hearing for a case that took place in June 2016. Whilst not directly connected with the assessment in question, the Judge required a member of the Respondent to be present. As Mrs Williams was not involved with the case before this point, this led to the Claimant failing to answer the Judge’s questions to an acceptable standard. As a result, the Claimant suffered heavy criticism by the Judge to the point that other legal representatives described her as being a ‘human punching bag’. Understandably, the Claimant described herself as being traumatised by the experience.

The issue rests for a time, becoming apparent again in March 2017, wherein another member of the fostering team announces their retirement. The Claimant is then informed that she would need to undertake viability assessments again, which could also include attendance in family court. In March 2017, she was signed off sick with stress for 28 days. Occupational Health and GP reports stated throughout that the Claimant was likely to make a full recovery providing that she was not required to make court appearances. However, after an extended period of sickness absence which lasted until September 2018, she was dismissed having never returned to work. During the appeal process the Claimant produced a document indicating that her symptoms were suggestive of PTSD and major depressive disorder. The appeal was unsuccessful. The Claimant then brought complaints of disability discrimination and unfair dismissal.

In the initial hearing the Tribunal found in favour of the Claimant for the unfair dismissal but did not find in favour regarding the disability discrimination. The Claimant brought an appeal to the Employment Appeal Tribunal (EAT). The appeal focused on three points; 1. The Tribunal failed to properly consider the impact her impairment had on day-to-day activities, 2. The Tribunal had an overly selective ‘cherry-picked’ approach to the Claimant’s evidence on what domestic tasks she could or could not perform, and 3. The Tribunal had erred in finding that attending court as part of the Claimant’s duties did not amount to a day-to-day task or failed to adequately explain why it did not amount to such.

The EAT found that, once the reasonable adjustment had been made to remove the requirement for the Claimant to attend the court hearings, the remaining work tasks exclusively involved day-to-day activities. As the Claimant’s impairment therefore had a substantial adverse impact on these activities, the first ground of appeal was allowed. While the first ground was sufficient to allow the appeal, the EAT went on to consider the other two grounds. The EAT was not convinced that breaking down an appearance in court to ‘reading into a subject, travelling to a venue, speaking and answering questions’, which would individually be categorised as day-to-day activities. The EAT did not agree that the Tribunal gave undue weight to the tasks that the Claimant could do, either.

In determining that the Claimant was disabled at the relevant time, the EAT has now remitted the claim back to the Employment Tribunal to be reconsidered in light of their determination.

Takeaway Points

The first point to mention here is how serious attending Court or Tribunal hearings can be. For those not prepared or trained in the processes this can amount to a traumatic experience, which is what we have seen here. One hopes that it is not a regular occurrence for non-legal professionals to be used as metaphorical punching bags by the judiciary, however. Ensuring you are adequately prepared and represented by trained professionals can alleviate a great deal of the stress of legal proceedings.

In circumstances of long employee absence, especially ones that result in unfair dismissal claims, the question that needs to be asked is – what could the employer have done to prevent this from happening? In this case the answer is fairly straightforward. It was not an integral part of the Claimant’s role to attend court hearings, to the point that her role did not exist outside of that duty. It was a reasonable adjustment for the employer to simply allow the Claimant to no longer perform the task considering the traumatic experience she had suffered. Had they removed this requirement, it would also have allowed a far earlier return to work. A small adjustment with a big positive outcome for all parties.

If you, or someone you know are dealing with any of the issues mentioned above, please contact a member of our team who will be able to assist.