Disabled colleagues require specific support from employers on a daily basis. The issue of dismissal draws further on the expert management needed.
The case of Simmonds v Salisbury NHS Foundation Trust involved two senior employees working in a small support service. Employee B had a history of bullying behaviour, which had gone unchallenged for many years. Employee A raised informal complaints about employee B's bullying; this was managed through mediation but with no resolution.
When employee A raised a formal complaint of bullying against employee B, it was investigated and upheld, resulting in a disciplinary process issuing employee B with a written warning.
Employee A complained that the sanction was too lenient and that employee B should have been dismissed. She also claimed she was disabled – suffering anxiety, depression and phobia – and refused to work with employee B. Employee A stated that her disability was the result of an operation to cure epilepsy which had altered her brain function, resulting in her extreme reaction on simply seeing employee B being out of her control.
The Trust faced the conundrum of how to maintain the service and deal fairly with the relationship breakdown between two senior employees, one of whom was disabled. All options were considered, including redeployment; setting up separate services; both employees working together (which employee B was willing to do); or dismissal of one or both employees.
The choice boiled down to either dismissal of one or both employees; or the two employees agreeing to work together. The Trust found itself grappling with some interesting questions:
- If they dismissed employee B would this be unfair because she was willing to make amends and she had already been punished for the bullying behaviour? Was it fair to punish her twice?
- If they dismissed employee A would this also be unfair because she didn't want to work with her bully?
- Did the fact that she was disabled trump everything and mean it was reasonable to dismiss employee B?
In the end, the decision was made to dismiss employee A. The Trust didn't think it was fair or a reasonable expectation to dismiss employee B to accommodate employee A's disability.
Employee A brought claims for unfair dismissal and disability discrimination.
The matter was taken to the Court of Appeal, which entirely agreed with the Trust's decision: the dismissal of employee A was fair and reasonable. Even though other employers may have dismissed employee B, it would not be reasonable to expect the Trust to dismiss employee B in unfair circumstances just to accommodate employee A's disability.
So what does this mean for other employers who may be facing similar challenges? The case provides reassurance for HR teams. It underlines the fact that you don't have to take unreasonable steps just to accommodate employees with disabilities, and that the litmus test ultimately remains one of fairness.
That said, crucial to the Trust's success was the significant groundwork undertaken prior to the dismissal decision: it explored all forms of mediation; reviewed all redeployment options; looked at alternative ways of providing the service; and commissioned an independent investigation to make suggestions around the outcome options.
Only once all this had been done did it use the information to support its dismissal of employee A. Without this groundwork, the result could have been different and it may have been reasonable to dismiss employee B to accommodate employee A's disability.
Anna George is a senior associate (barrister) in the employment & pensions group at DAC Beachcroft LLP