The Employment Appeal Tribunal (EAT) has allowed a woman’s appeal against a decision of the Employment Tribunal (ET) that she was not entitled to compensation for unfair dismissal because, had the employer followed a fair procedure, she would have been dismissed in any event. Her appeal against the ET’s rejection of her disability discrimination complaint was also allowed.
The woman had begun working for a professional services business in 2009. Her employer operated a progression-based performance model whereby it expected employees to demonstrate continuous development towards the next level of seniority, and to be already demonstrating performance at that level before being promoted. She received promotions in 2011 and 2013.
In 2018 she was diagnosed with endometriosis. She underwent surgery and took two periods of sickness absence. In July 2019, having been rated as ‘not progressing’ in two consecutive performance reviews, she attended a meeting to discuss her performance, at which she was told she was to be dismissed. She brought ET complaints of unfair dismissal and disability discrimination.
The ET found that her dismissal was unfair because her employer had breached its disciplinary and appeals policy in not conducting the specified type of investigation and because the investigation was conducted by two members of staff previously involved in managing her. However, the ET decided that there should be a 100 per cent Polkey reduction on the basis that, had the employer used a policy that reflected the approach taken, she would have been fairly dismissed at the same time in any event. The ET found that the employer’s progression-based model was fair. Her disability discrimination complaint was also rejected, the ET finding that she was not disabled by reason of her endometriosis and that even if she was, the employer did not have the requisite knowledge. She appealed to the EAT.
The EAT found that the ET had applied a counterfactual in which, rather than complying with the disciplinary and appeals policy, the employer would have introduced a new policy that would have mirrored the process it had applied. There was nothing in the ET’s judgment to show that the employer would have introduced such a policy. The ET had thus erred in law in its assessment of the Polkey reduction by analysing what it would have done, rather than looking to the employer to prove what it would have done had it had the opportunity to correct its error. The issue was remitted to the ET, along with the question of whether the employer would have applied the progression-based model and, if so, the chance that the woman would have fairly dismissed on the application of that procedure.
While the ET appeared to have accepted that the woman’s endometriosis constituted an impairment, it had found that reason for her absences from work was because she had been recovering from surgery. The EAT observed that if an employee is absent from work because of treatment for an impairment, that is generally a substantial adverse effect on day-to-day activities. The ET had failed to consider the likelihood of recurrence and whether her condition would continue to have a substantial adverse effect without medical treatment. The issue of disability would have to be considered afresh.