Nicholas Siddall assesses the interaction of unfair
dismissal, human rights points and the duty to make reasonable adjustments in
the light of the recent EAT decision in Howorth-v-N Lancs PCT
Even as counsel for the Respondent it was difficult not to feel
sympathy for the Claimant Ms Howorth. In the space of 6 months she suffered a
series of catastrophic occurrences including the death of a family member, her
husband leaving her, a diagnosis of cancer and a need to undergo chemotherapy. She then suffered a nervous breakdown and in
an (agreed) state of non-insane automatism committed criminal offences. The
Claimant pleaded guilty to those offences on advice. She was then dismissed by
the Respondent on the basis of her offending coupled with the fact that in the
light of her role as a health visitor the Respondent could not afford the risk
of recurrence.
The claim
The Claimant presented her claim in three ways:
(i) Owing to the fact that her offending
was involuntary, and so she could not form the mens rea of the relevant offences, dismissal was outside the band
of reasonable responses;
(ii) As her dismissal infringed the
Claimant’s Article 8 right to a private life the Employment Tribunal should not
apply the band of reasonable responses test and instead should resolve issues
of fact for itself and determine independently whether the Claimant’s dismissal
was proportionate;
(iii) Instead of dismissing the Respondent
should have made adjustments to the Claimant’s role.
The Employment Tribunal’s decision
The Employment Tribunal rejected claims (i) and (ii). It
considered that dismissal fell plainly within the band of reasonable responses
in the light of the Claimant’s conviction and it considered that the Article 8 argument
had been rejected by the decision of the Court of Appeal in Turner-v-East
Midlands Trains by which it was bound.
The Claimant succeeded on (iii) as the Employment Tribunal
found that in failing to consider what adjustments it might have made the
Respondent had breached its duty. However in a later remedy judgment it found
that no adjustments would in fact have been successful in keeping the Claimant
in work.
The appeals
Both parties appealed and the matter was heard before HHJ
Birtles. The Claimant’s appeal was noteworthy for the bold arguments deployed
therein – all of which were rejected by the EAT-.
The decision on
appeal
(i) The EAT accepted that the decision
to dismiss plainly fell within the band of reasonable responses. The Claimant’s
submission that her involuntary action meant that she was unable to form the
requisite mens rea for the relevant
criminal offences and thus was guilty of no misconduct at all was rejected.
Interestingly
the EAT observed:
“The Respondent was not required to carry out
legal research into the background to those pleas of guilty. The question for
the Respondent was: might she do it again in the future or something akin to
it?”
(ii) The EAT rejected the submission that
Article 8 ECHR has any impact on the facts of this matter. The Claimant’s
submission that Turner was decided per
incuriam as a result of the failure to apply the reasoning of the Supreme
Court in Manchester CC-v-Pinnock was rejected. Equally the submission
that there was a discernible difference in the approach to the Article 8 issue
in the speeches of Elais and Sedley LJJ in Turner was also rejected.
(iii) The EAT accepted the Respondent’s
submission that it was an error of law to hold that there is an antecedent duty
to consider what adjustments might be made. It accepted the Tarbuckpoint that the only question is an objective one. The suggestion of the
Claimant that the decision in Tarbuck was per incuriam in failing to have regard to the wording of s18B(3)
–(4) DDA and the decision of the Court of Appeal in H-v-MPC (a claim
against the Police in the civil courts) was also rejected. It was also accepted that
the Employment Tribunal had erred in failing to identify a single adjustment
which might in fact have succeeded in keeping the Claimant in work.
(iv) The EAT accepted that a failure to make
reasonable adjustments may in appropriate circumstances impact on the fairness
of a dismissal (a point recently repeated in the context of a s15 disability
discrimination claim: Dominique-v-Toll Global [2014] UKEAT/0308/13). However as no identified adjustments
would have made any difference to the Claimant’s ability to remain in work then
the failure to make the same cannot logically have impacted on the fairness of
the dismissal.
Analysis
The decision is important as it recognises the difficulty
faced by an employer in a unique situation such as this and affords a wide
margin of appreciation to its decisions. The employer is not required by the
band of reasonable responses to become a lawyer and assess the precise legal
basis/consequences of a guilty plea. It is also important in addressing the
requirement that an adjustment must make a practical difference in order to be
reasonable.
End of the story?
The matter may not rest at EAT level as the Claimant has
indicated an intention to appeal and is understood to have petitioned the Court
of Appeal. The following grounds are sought to be advanced:
(1) The decision that the Claimant was
guilty of gross misconduct is impermissible in the light of the decision of the
Supreme Court in West London Mental
Health NHS Trust -v- Chhabra;
(2) The analysis of the EAT of Turneris incorrect or the decision of Turner is incorrect in failing
properly to apply the requisite Article 8(2) ECHR approach.
In the event
that permission to appeal is granted a further update shall follow.
