Fair or Foul?

08 Sep 2014

Mrs H was employed by an NHS Trust. September 2006 was a difficult month. Her son left home to start university, her mother (for whom she was the principle carer) fractured her thigh and her brother-in-law died. It got worse. In December her husband left her and she was diagnosed with Breast Cancer. She became depressed.

In February 2007 Mrs H had a mastectomy and reconstructive surgery followed by six months chemotherapy. She was working full time by April 2008.  The following month a friend died – of breast cancer, and a colleague went sick. Mrs H had to carry her colleague's work as well as her own.

On 2 July 2008 Mrs H attended a clinic and discussed her friend's death. Afterwards she went shopping at Asda.  She left without paying. A bystander tried to stop her and was trapped in the car door. Another was thrown onto the bonnet as Mrs H made her getaway. Mrs H was convicted of theft, two counts of battery and dangerous driving.

The Trust accepted Mrs H acted as an automaton but dismissed her in November 2009. It also rejected her application for a new post 16 months later. Mrs H launched multiple legal actions. She claimed unfair dismissal, disability discrimination through the Trust's failure to adjust her role as an alternative to dismissing her (i.e. not making adjustments for her mental incapacity) and for not offering her the new post (she was excluded through convictions which arose from a mental impairment). For good measure she claimed a couple of breaches of the Human Rights Act.

The Employment Tribunal decided:

  1. The dismissal was fair;
  2. the Trust didn't consider adjustments so the first claim of discrimination succeeded. However at a remedies hearing the tribunal found that none of the suggested adjustments would have worked;
  3. the Trust couldn't ignore the convictions so the second claim of discrimination failed;
  4. it didn’t understand the human rights points but they didn’t add anything.

Both sides appealed. The only appeal which succeeded was the Trust's appeal against the adjustment point. Not unreasonably the EAT said that if no adjustment could have succeeded there can't have been a failure to make reasonable adjustments. In plain English; Mrs H lost.

This case is a none too gentle reminder that a well intentioned piece of social engineering has created a hydra. Mrs H first claim was lodged on 11 February 2010. The EAT's judgement was given on 22 August 2014. Was it really worth four and a half years expensive litigation to discover that life's not fair?