Is it a reasonable adjustment to grant an extension of time to appeal a decision to dismiss? And if so, does a failure to make such adjustment render a dismissal unfair?
These questions were considered by an Employment Tribunal and subsequently the EAT in the recent case of Knightley v Chelsea & Westminster Hospital NHS Trust.
In this case Ms Knightley was a midwife. The Tribunal found that she suffered with stress, anxiety and depression, for which she was prescribed anti-depressants. The respondent conceded that this amounted to a disability for the purposes of the Equality Act 2010.
Ms Knightly was dismissed following a capability procedure. She was denied an extension of time to appeal against dismissal and subsequently brought claims for unfair dismissal, discrimination arising from disability and failure to make reasonable adjustments. The Tribunal held that the respondent’s decision to not grant an extension of time to lodge an appeal amounted to a failure to make reasonable adjustments. However, it found that her dismissal was fair and proportionate and therefore dismissed her other claims.
Ms Knightley’s appeal was on the basis that the Tribunal’s finding that she had been unreasonably denied an opportunity to appeal against her dismissal ought to have led to her other claims succeeding.
The EAT noted that the legal tests for all three claims were different, and the fact that an employer might fail on one of the claims does not mean that it will fail the others. Here, the conclusion on the reasonable adjustment claim did not depend on or reflect the merits of the case for dismissal or the dismissal itself or whether the appeal would have made any difference to the outcome.
What this means for employers
This decision shows that a failure to allow an extension of time for an appeal against dismissal may amount to a failure to make reasonable adjustments. However, this will not always render the dismissal unfair.
Cases regarding capability need to be dealt with in the context of the specific circumstances, and early advice should be taken to help protect your organisation.