An employee has won a disability discrimination case because his employer failed to take into account a change in his circumstances over a three-month period.

The case involved an employee who had broken his back in 1995 and had spent 11 months in hospital before he could return to work. Over the coming years he was frequently on sick leave and although he was transferred to a more suitable role, the absences continued.

In 2010, the employer decided to release him and gave three months’ notice.

The employee did not appeal within the time limit and then the employer refused his request to extend the limit so that he would not be dismissed until after a forthcoming operation. Towards the end of the notice period, the employee applied for ill-health retirement but this was refused because the employer’s medical advisers considered that the operation would alleviate his condition within the foreseeable future.

He claimed unfair dismissal and disability discrimination but the employment tribunal found in favour of the employer.

The employee then appealed on the grounds that the tribunal had failed to consider the fact that the employer’s decision to dismiss him, which had been based on the advice of its medical advisers that he would be unable to do his job in the foreseeable future, was undermined by its subsequent refusal of his application for ill-health retirement.

The Employment Appeal Tribunal upheld the employee’s appeal.

It held that the tribunal wrongly confined its focus to the fairness of the initial decision to dismiss rather than the fairness of the dismissal itself. There had been a three-month gap between the decision and the dismissal, and the tribunal had not considered whether the changed circumstances regarding the outcome of his forthcoming operation required the employer to re-visit its original decision.

The dismissal was therefore unfair and the employee had been discriminated against on the grounds of his disability.

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