Dismiss on Capability Grounds

Hello , last week it was the newsletter and thus the time lapse between our last Case of the Week and this one means we have two cases for you this week, a Friday treat. The first concerns disability discrimination and death in service benefits whilst the second is about Early Conciliation.

Our first case is London Underground Ltd v O’Sullivan and asks:

Can the estate of a deceased employee continue an ongoing claim?

Is work shadowing a reasonable adjustment?

Can an employer dismiss on capability grounds if it doesn’t implement reasonable adjustments?

Mr O’Sullivan, the Claimant, was a Station Supervisor for London Underground Ltd, the Respondent. The Claimant had over 21 years’ service with an immaculate record. Following the death of his mother he was diagnosed with depression.

As a result of the medicine prescribed to the Claimant, the Respondent was advised that he should not perform safety critical duties. This meant the Claimant could no longer continue as a station supervisor.

The Claimant’s condition did not improve and he was absent for a considerable length of time. Occupational Health suggested that the Claimant be transferred to the role of Customer Service Advisor, which was not safety critical. They suggested a four week period of work shadowing whereby a manager at the Respondent would support the Claimant. They believed this may help his illness but would also condition him to work.

The Respondent rejected this proposal as the manager was not prepared to shadow the Claimant for such a lengthy period of time. The Claimant was dismissed on capability grounds and initiated Tribunal proceedings but tragically and unexpectedly died shortly after. The Claimant’s wife continued the claim.

The Tribunal allowed the claims, it held that, following the decision in Fox v British Airways, the estate of a deceased employee could pursue a claim and gain death in service benefits if the dismissal was deemed unfair. The ET felt that there was an 80% chance the work shadowing would have resulted in the Claimant successfully returning to work and the Respondent not following Occupational Health’s advice was discriminatory. The Claimant’s estate was awarded £220,000.

The Respondent appealed the decision. It alleged that the decision in Fox was wrong and that the ET had incorrectly calculated the prospects of the Claimant successfully returning to work and being employed at his time of death.

The EAT rejected the appeal, it felt that as the Respondent had not implemented the work shadowing the ET had correctly decided the prospects of the Claimant remaining in work. The appeal regarding the Fox decision was also rejected but the Respondent can appeal to the Court of Appeal if it wishes to pursue the issue.

The takeaway points:

Yes an estate of a deceased Claimant can pursue Tribunal proceedings, for now. This decision supports the Fox judgement and unless the Respondent challenges this decision it is safe to assume that an estate can be entitled to a death in service benefit, as well as the usual Tribunal award, if an employee is unfairly dismissed shortly before their death.

Work shadowing is a reasonable adjustment, particularly in cases where a disabled employee’s condition might mean they initially need support after a lengthy absence. Not implementing a reasonable adjustment then dismissing on capability grounds will always be unfair. We advise a softly, softly approach when handling mental illness related disabilities, with support employees can often make a successful return to work.

If you would like to find out more about how employment law judgments from the last twelve months have impacted on HR practise, or, would like to find out about how  recent employment law changes will impact your business, then please attend our free seminar.

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