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Failure to consider part-time working meant dismissal not justified

SR
Employment Law & HR
BG Purple

Note: this article was first written by our colleagues at Solve HR, before Solve HR joined Law At Work in March 2020. We have imported this...

In the case of Ali v Torrosian and others (t/a Bedford Hill Family Practice), Dr Ali was on long term sick absence following a heart attack, which was accepted as a disability. A medical report stated that it was unlikely he would be able to return to work on a full-time basis but that he could return on a phased, part-time basis. Dr Ali was then signed off work for six weeks due to a shoulder injury. On the expiry of that certificate his employer dismissed him on grounds of capability. Dr Ali claimed that he was unfairly dismissed and discriminated against due to his disability. The Employment Tribunal (ET) found that his dismissal was unfair due to this employer's failure to consider a return to work on a part-time basis, but rejected his discrimination claim, finding that his dismissal was justified by the employer's legitimate aim of ensuring that it provided the best possible care to patients. Dr Ali appealed to the Employment Appeal Tribunal (EAT) in relation to the rejection of his disability discrimination claim. The EAT ruled that the employment tribunal had been wrong to find that dismissal was justified, without considering whether part-time working was a less discriminatory means of the employer achieving its legitimate aim. Having found that the employer's failure to consider part-time working meant his dismissal was unfair, it should have taken this factor into account when considering whether dismissal was proportionate. Although the tests for unfair dismissal and disability discrimination are different, the factors that are relevant for determination are likely to be substantially the same. At the date of dismissal, Dr Ali's last sick certificate had ended and the medical advice indicated that he should be able to return on a part-time basis. The ET should have considered whether the employer's failure to consider part-time working as an alternative to dismissal meant that his dismissal was not objectively justified. The EAT submitted the case to the same tribunal to reconsider this issue. For advice and support on absence and discrimination, contact us at Solve.

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