In Cummins Ltd v Mohammed the Employment Tribunal (ET) found that Mr Mohammed had been unfairly dismissed and discriminated against for a reason arising from his disability. Mr Mohammed worked for the Respondent since 1987 until his dismissal in June 2017. He had been given a final written warning for aggressive behaviour in July 2016. On 17 August 2016 he was diagnosed with anxiety and depression and began a period of sick leave. During a visit to his GP on 31 August 2016 he was advised to take a short therapeutic break. Mr Mohammed took this break and went on holiday to Pakistan.
The Respondent contended that the holiday was not authorised and that the Claimant had been declared fit to return to work by an Occupational Health consultant prior to leaving for holiday. They stated they had only learned of his departure from the country when they attempted to contact him on 20 September 2016 to invite him to discuss the Occupational Health Report. The Respondent commenced disciplinary proceedings as a result of this. They eventually dismissed the Claimant without notice, and rejected his subsequent appeal. At the ET, Mr Mohammed successfully argued that his employer had dismissed him for something arising as a consequence of his disability - namely a holiday which was taken on the advice of his doctor.
Section 15 of the Equality Act 2010 provides that if person B treats person A less favourably because of something arising in consequence of A's disability, and cannot show that the treatment is a proportionate means of achieving a legitimate aim, then person B will have discriminated against person A. It is therefore crucial to determine what was taken into consideration by B when the alleged unfavourable treatment took place.
The EAT found that the ET had failed to properly consider what the employer's decision was based upon. They had readily found as fact that permission for Mr Mohammed's holiday had been granted by the Respondent, without taking all relevant evidence into account. The ET had therefore failed to properly address the actual misconduct the Claimant had been accused of and what part that played in the decision to dismiss. In relation to the unfair dismissal case, the ET had also substituted their own views for that of the employer and so, had erred in law.
The case has been remitted back to a new tribunal in its entirety to be heard again. It serves as a reminder that the reason for the alleged unfavourable treatment must be a focus of the tribunal's deliberations, and must be determined with reference to the available evidence. Therefore supporting evidence such as clear written reasons and detailed meeting notes will be crucial to a party's success in tribunal.
