Employment Law Speed Read – 06/08/18

Nottingham City Homes Ltd v Brittain

In Nottingham City Homes Ltd v Brittain the Employment Appeal Tribunal (EAT) considered whether an employer had discriminated against, or failed to make reasonable adjustments for, a disabled employee.

Facts

Mr Brittain worked for Nottingham City Homes (NCH) from January 2010 as an Electrical Technical Officer, a role which involved some physical work, occasionally having to access awkward spaces such as roof spaces and manholes.

In June 2015 Mr Brittain was diagnosed with a rare form of cancer, the treatment for which left him with a treatable but incurable condition causing pain and swelling in one leg. NCH arranged for Mr Brittain to be assessed by an Occupational Health Nurse who concluded that Mr Brittain was not fit for any type of work but that his case should be reviewed in three months. It was stated that no reasonable adjustments to enable Mr Brittain to return to work were required at the time, due to his unfitness for work.

NCH later referred Mr Brittain to an Occupational Health Physician to consider whether Mr Brittain might be eligible for ill health early retirement. The Physician concluded that there was insufficient information to give an opinion regarding his eligibility. NCH did not enquire as to whether Mr Brittain might benefit from reasonable adjustments.

NCH ascertained that Mr Brittain was eligible for ill health early retirement and dismissed him due to this eligibility. Mr Brittain appealed against this decision and asked to return to work with adjustments to allow for his condition but NCH rejected this request. Mr Brittain filed a claim against NCH for discrimination arising from disability and failure to make reasonable adjustments.

Employment Tribunal (ET)

The ET held that NCH’s failure to follow the advice of the Occupational Health Nurse, which recommended a review of Mr Brittain’s condition in three months, meant that NCH’s decision to dismiss Mr Brittain could not be considered a proportionate means of achieving a legitimate aim and so his claim for discrimination arising from disability was upheld.

The ET also held that there was evidence that had proposed adjustments been introduced Mr Brittain’s disadvantage would have been eliminated or reduced and he would have been able to return to work, and these adjustments would have been reasonable, thus the claim for failure to make reasonable adjustments was also upheld.

Employment Appeal Tribunal

The EAT held, in relation to the first claim, that NCH’s failure to obtain further medical evidence in the form of a follow up review of Mr Brittain’s condition meant that NCH was unable to form a reasonable opinion as to whether Mr Brittain could return to work or could be dismissed due to ill health early retirement. As such, NCH’s decision to dismiss could not be said to have been a proportionate means of achieving a legitimate aim, and so the appeal was dismissed.

However, the EAT held in relation to the second claim that, while the ET had concluded that Mr Brittain would have been able to return to work with reasonable adjustments, the evidence did not in fact support this and that the ET had erred in reaching this conclusion. This point was remitted to the ET for rehearing.

Comment

This case is another reminder of the need for employers to not only consider the current evidence when deciding to dismiss but also to take reasonable steps to obtain all available evidence that might not already be in its possession. Otherwise any argument that dismissal was a reasonable and proportionate means of achieving a legitimate aim is likely to fail.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.