Philander v Leonard Cheshire Disability UKEAT/0275/17/DA

Appeal against the dismissal of all the Claimant’s claims, which were for unfair dismissal, wrongful dismissal and disability discrimination. Appeal dismissed.

The issues in the three grounds of appeal were that: 1) the ET failed to consider whether the reason for dismissal put forward by the Respondent in the unfair dismissal complaint properly fell within the capability (as opposed to conduct) category (which would mean that the Respondent had not established a potentially fair reason for dismissal); 2) whether the ET's findings of fact supported its conclusion that the Claimant had not been wrongfully dismissed; and 3) in relation to the disability discrimination complaint, whether the ET had correctly approached the comparative exercise in considering whether the Claimant had been less favourably treated and subject to unlawful direct disability discrimination contrary to section 13 Equality Act 2010.

The EAT dismissed the appeal. 1) The Respondent in this case was entitled to consider the Claimant's behaviour as conduct;  2) the ET was entitled to conclude from the evidence before it that the Claimant's shortcomings were serious enough to constitute gross negligence, amounting to repudiatory conduct, such as to entitle the Respondent to dismiss without notice and 3) there was no error in the Tribunal's approach to the comparator exercise both in considering disparity of treatment for the purposes of the unfair dismissal claim and for the exercise of the statutory comparison under section 23 Equality Act 2010 in considering the Claimant's complaint of direct discrimination.

Published: 03/12/2018 10:30

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