Tribunal Report: Mistakes in procedure can make for unfair dismissal

A recent case shows how charities can leave themselves open to claims of unfair dismissal if they don't follow the appropriate codes when dismissing staff, says Victoria Willson

Victoria Willson
Victoria Willson

The recent judgment of the Employment Appeal Tribunal in the case of Prospects for People with Learning Disabilities v Harris shows how procedural failings can make a dismissal unfair.

The story

Prospects is a charity providing supported living services for disabled people. It employed the claimant, Elizabeth Harris, as a support worker in a property that housed three residents with severe disabilities.

It was a requirement of her role that Harris held a first-aid certificate. The charity was aware that, because of a physical disability, she could not perform certain tasks, including cardiopulmonary resuscitation. Despite this, Harris had obtained (and had renewed) a FAC from an appropriate training body; but she was unable to renew her FAC in March 2010 because of a change in the first-aid assessment process.

Without prior discussion, the charity suspended Harris on full pay "on safety grounds". It obtained an occupational health report and arranged for her to work in an alternative role while risk assessments were conducted. On the basis of those assessments, she was suspended again in August 2010 "on the grounds of her own safety". Again, Prospects did not discuss this with her. Further medical advice was that any increased risk to Harris's own safety was small.

Harris returned to work and, in November 2010, was called to a meeting to review her situation. She was not advised that a potential outcome of the meeting was the end of her employment. During the meeting, she was reminded about the FAC requirement for all staff and was told that the risks in her job were unacceptable. In the absence of any other suitable roles, her employment was subsequently terminated. An internal appeal was unsuccessful.

Harris brought a number of claims in the Cardiff Employment Tribunal.

The legal decisions

The tribunal upheld the claim of unfair dismissal. It found that, although her dismissal could have been fair on the grounds of capability, Prospects had failed to follow a fair procedure. In particular, it had failed to properly consult with Harris before decisions about her employment were made.

The tribunal rejected the claims of disability discrimination and victimisation, but upheld a claim of harassment. It concluded that it was discriminatory in this case because the risks referred to as the justification for the suspension had never before been a problem in Harris's eight years of employment.

Prospects appealed unsuccessfully to the Employment Appeal Tribunal, which upheld all of the Employment Tribunal's findings.

Lessons for charities

Dismissals must be substantively and procedurally fair. Charities should ensure they follow the Acas code, consult with the affected employee and take care to keep an open mind until the end of the process.

Dismissals on the grounds of capability when the employee is disabled are difficult and the law in this area is complex. Charities should obtain up-to-date medical evidence and seek legal advice.

Victoria Willson, a partner at Levenes Employment, third sector specialists

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