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Is a failure to make a reasonable adjustment when dismissing always unfair?

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Is a failure to make a reasonable adjustment when dismissing always unfair?

The Employment Appeal Tribunal (EAT) has held that a dismissal was not unfair despite the failure to make reasonable adjustment for a disabled employee in Knightley v Chelsea & Westminster Hospital NHS Trust.  

In this article, Employment Partner Paul Burton discusses the impact that the outcome of this case has on employers nationwide.

Case background

It was agreed that Ms Knightley was disabled and, after a capability procedure was completed by the Trust, she was dismissed. 

Ms Knightley wanted to appeal the decision and asked for an extension of the time normally given to do so. 

This was refused and, as part of her claim to the employment tribunal, she said this was a failure to make a reasonable adjustment. 

The employment tribunal agreed. Despite this, they went on to decide that the dismissal was fair, saying that any appeal would not have changed the outcome to dismiss her.

What did the EAT decide?

Ms Knightley appealed on several points, one of them being that, having found a failure to make a reasonable adjustment, the employment tribunal should have found the dismissal to be unfair. 

The EAT, however, disagreed.  They held that the test for whether or not an employer should have made a reasonable adjustment for someone’s disability is different from the test for unfairness in a dismissal situation. 

The fact they found the employer to be short of the mark on the former did not mean they had unfairly dismissed Ms Knightley. 

Why did the tribunal decide this?

The employment tribunal was entitled to find that there were facts that meant the failure to make a reasonable adjustment did not result in an unfair dismissal.

The employment tribunal had explained in sufficient detail their reasoning as to why any appeal would not have made a material difference and therefore the finding of a fair dismissal was upheld.

What implications does this case have for employers?

Paul Burton, Employment Partner at Frettens, said: “This case will be of relief to employers in that, even if they do fail to make a reasonable adjustment, a subsequent dismissal may still be fair. 

However, it should be appreciated that the Trust were still liable for the failure to make reasonable adjustments and Ms Knightley could be compensated separately for that failure.” 

Key takeaways for employers

Paul continued: “Employers should still ensure that any reasonable adjustments are considered with a disabled employee and, if they cannot be agreed, sufficient and good reasons provided as to why this is the case.”

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Related article: Is protecting pay of a disabled employee a reasonable adjustment?

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