Can a dismissal be an act of discrimination if the affected employee is subsequently reinstated? In a case concerning a disabled IT support analyst, the Employment Appeal Tribunal (EAT) answered that important question in the affirmative.
The man’s employer, a railway infrastructure company, was aware that he suffered from ulcerative colitis. Due to that condition, which amounted to a disability, his record of absence from work was on any view high. He had been off work sick for almost five months when he was given notice of redundancy. After that notice period expired, he was dismissed.
That decision was in breach of a national agreement between the employer and trade unions that there would be no compulsory redundancies amongst workers in the man’s grade during the relevant year. Having apparently realised its error, the employer first extended the redundancy notice and then revoked it. The man returned to work and was still in the same employment when he launched Employment Tribunal (ET) proceedings.
In dismissing, amongst other complaints, his direct disability discrimination claim, the ET found that it was a genuine redundancy situation and that his dismissal was not a sham. His employer handled his dismissal poorly, but it had arisen from management ineptitude rather than from his disability. The man having in any event treated himself as employed throughout, the ET found that, on his reinstatement, his dismissal effectively vanished.
In upholding his appeal against that ruling, the EAT noted that the man was the only one amongst the employer’s large workforce to be dismissed in breach of the union agreement. There had apparently been some animus directed towards him because of his frequent absences from work and there had been no consideration of whether that was the underlying reason for the employer’s error.
His reinstatement was irrelevant to the issue of whether the employer’s failure to retract the redundancy notice before it took effect was a detriment that arose because of his disability. The same ET was directed to consider the man’s disability discrimination claim afresh in the light of the EAT’s ruling.