Her absence began on 10 January 2013 and a decision was taken to terminate her employment on 28 May 2013 with her notice expiring on 31 July 2013. She successfully claimed both unfair dismissal and discrimination arising from a disability and was awarded £238,216.37 in compensation, one of the largest Tribunal awards of 2014.
The employer appealed and the EAT were of the view that the Tribunal had failed to consider one of the fundamental questions when dealing with long term absence - whether the employer could have been expected to wait longer before dismissing.
The EAT also found that the Tribunal had erred in its consideration of proportionality when assessing the discrimination arising from disability claim. Discrimination of this type can be justified and in consequence of that, if the employer can demonstrate that the dismissal was a proportionate way of achieving a legitimate aim then the claim will fail.
This judgement reconfirms the need for employers to consider their own circumstances as well as those of an absent employee prior to dismissal. Given the pressures faced by the business, both at the time of the dismissal and going forward, could it reasonably have been expected to allow the employee more time to return to work? Without taking that point into consideration it was not possible to assess whether the dismissal had been fair.
Employers considering dismissal in consequence of a long term absence should also ensure they have consulted with the employee about an anticipated date for a return to work and any reasonable adjustments that might be required as well as taking the employee's views into account and ensuring that steps are taken to obtain proper medical advice.