The London Employment Appeal Tribunal (EAT) has overturned an employment tribunal’s finding that a former charity worker dismissed for ill-health capability suffered disability discrimination.
According to the EAT’s judgment in Centrepoint Soho Ltd v Ms S Omaboe, handed down on 30 January 2018, there was no proven link between the disability of the claimant, Ms Omaboe, and her dismissal by Centrepoint, a UK charity for the young homeless.
Mr Justice Soole said Omaboe had not presented her former employer with the disability discrimination claim and “it therefore did not respond to it”, and said the previous East London Employment Tribunal judgment in favour of Omaboe “must be set aside”.
Omaboe worked for homeless charity Centrepoint from 3 July 2006 until her dismissal on 1 May 2015, first as direct marketing officer and then after a promotion in August 2011 as direct marketing manager.
During a holiday to Ghana in August 2014, she became seriously ill with muscular tumors known as fibroids on her uterus, and anaemia. On her return home, she was immediately signed off work. She never returned to work.
In November 2014, a meeting took place between Omaboe, her line manager – head of marketing and communication Mr Wilk – and HR manager Mr Tolhurst, regarding her condition. It was left that matters would be reviewed in due course.
A first stage long-term sickness absence review took place on 22 January 2015 under Centrepoint’s sickness absence policy, followed by an occupational health assessment on 6 February 2015. This found it was unrealistic for Omaboe to attempt to return to work, and it was impossible to predict when she may return.
Although Omaboe suggested she could return to work within weeks during the first review meeting on 20 February 2015, another occupational health assessment in April 2015 revealed she could not return within four to six weeks.
By the time Omaboe’s entitlement to sick pay came to an end in April 2015, she was invited to a second sickness absence review on 29 April 2015. The only reference made in the meeting to dismissal was by Omaboe. Neither Tolhurst nor Wilk, who was chairing the meeting, mentioned that it was likely to be the next step.
However, Omaboe was dismissed on the grounds of ill-health capability by letter dated 1 May 2015. She appealed 10 days later.
During the appeal hearing on 29 May 2015, Omaboe said the meeting on 29 April had been unfair and that she would have explored other options with her doctor had she known the seriousness of the meeting. By letter dated 17 June 2015, her appeal was dismissed.
She brought her claim to the employment tribunal. Looking at the process as a whole, the tribunal held that Centrepoint appeal officer Ms Gibson’s conclusion that Omaboe remained unfit for work for the foreseeable future was open to her on the evidence, and that accordingly the dismissal was substantively fair.
As to the question of fairness, however, the tribunal concluded that the dismissal stage was procedurally unfair, because Centrepoint, both in the 29 April meeting and in its letter inviting her to it, failed to explicitly tell Omaboe in clear terms that the process had reached the second stage formal meeting under its policy and that one of the options was dismissal.
Acknowledging that the fairness of a dismissal must be considered in the light of the procedure as a whole, the tribunal considered the appeal process. It found that the procedural unfairness at the dismissal stage was not cured by Centrepoint’s appeal process.
“In our judgment, therefore, applying the test of fairness as identified above, we find that this dismissal was substantively fair – the employer could reasonably have concluded as it did that it could not wait any longer – but that there was material procedural unfairness that was not cured by the appeal. In those circumstances, we find that the claimant was unfairly dismissed.”
As to disability discrimination, the tribunal concluded that Centrepoint had a legitimate aim, which was to ensure reliable attendance, and that was evidenced by the existence of its sickness absence policy. That meant it was justified.
It found that Omaboe’s claim of discrimination arising from disability was established but it needed “to make it clear that we have no doubt that the claimant would have been dismissed within a very short while had a fair process been followed”.
Centrepoint appealed the judgment on four grounds. The appeal was heard by the EAT in November 2017.
Stoole allowed the appeal and concluded that the claim of unfair dismissal should be dismissed because Centrepoint had adopted a fair procedure. In addition: “As Omaboe was no longer in receipt of company sick pay at this stage [her dismissal], she has suffered no out of pocket loss because of this omission,” he said.
Centrepoint’s appeal against the discrimination finding was allowed on grounds that, as the claim having been brought, responded to and heard by reference alone to the ‘fact’ of dismissal, the tribunal was not entitled to determine the case by reference to the “manner or timing” of it.
Considering whether it was proportionate to dismiss Omaboe, “without first having given express warning of the risk of dismissal” – and whether she suffered discrimination arising from her disability by the manner of her dismissal – Stoole found that the tribunal had been “adjudicating on a claim that had not been presented, and to which there had been no response”.
He said that such a claim required proof of the causal link between her disability and treatment, which she had failed to provide.
He also said: “This was a new claim [of disability discrimination] that the tribunal had in effect created [based on the timing/treatment of her dismissal] without notice to either party. Centrepoint was not presented with such a claim and therefore did not respond to it. I conclude that the unfair dismissal judgment in Omaboe’s favour must be set aside and those claims dismissed.”
Barry Stanton, head of employment law at Boyes Turner, told People Management that although Omaboe’s dismissal was “tainted” by disability discrimination, the EAT decided that this was “cured” at her appeal meeting.
“The appeal gave her the opportunity she had been denied at the earlier hearing to explore the other opportunities to give evidence [to Centrepoint] of when she might return to work – meaning the defect had been cured,” he said.
Centrepoint had not responded to People Management’s request for further comment by press time.