Veitch Penny LLP - Exeter | Crediton, Devon

Case

Rothwell v Pelikan Hardcopy Scotland Limited
Employment Appeal Tribunal -(23 September 2005)

Issues

(1) Unfair Dismissal
(2) Disability Discrimination
(3) Procedural Fairness

Facts

Mr Rothwell suffered from Parkinson’ Disease, a fact which Pelikan was aware of when he was recruited by them. It was noted by the Tribunal that Pelikan had treated Mr Rothwell very sympathetically during his employment and adjustments were made to his role to accommodate his illness.

In November 2003, Mr Rothwell’s health deteriorated and he was absent from work. Pelikan arranged for him to see an independent health physician. The doctor’s report was pessimistic about his condition but instructed a neurologist to prepare a further report. The neurologist was more optimistic in his opinion referring to the new treatment that might allow Mr Rothwell to return to work.

The company’s doctor met with Mr Rothwell and discussed the report but did not show it to him. The doctor then wrote to Pelikan and advised that Rothwell would not be well enough to return to work in the foreseeable future. The doctor referred to the neurologist’s report but did not advise Pelikan of the more favourable prognosis or provide Pelikan with a copy of it.

Pelikan met with Mr Rothwell having already taken the decision to dismiss him. Mr Rothwell told Pelikan that he was unhappy with the meeting with the OH doctor and urged Pelikan to consider the neurologist’s suggestion that he might be fit to return to work. Despite his views, Pelikan still dismissed him.

At first instance, his claims for unfair dismissal and disability discrimination were rejected. Mr Rothwell then appealed.

Decision

The Employment Appeal Tribunal (EAT) referred the Tribunal’s decision. With regard to unfair dismissal, the EAT confirmed that only in an exceptional case would it be fair to dismiss someone for incapacity reasons without prior consultation. This was not one of those cases. The EAT further concluded that the meeting with Rothwell had not amounted to consultation because the facts of the case showed that Pelikan had already made its decision to dismiss him before the meeting started.

With regard to the disability discrimination claim, the EAT found that less favourable treatment could not be justified if any reasonable adjustments that should have been made had not been made. The EAT found that failure to consult with Rothwell properly before dismissing him could amount to a failure to make a reasonable adjustment because it could have altered Pelikan’s decision to dismiss. The EAT then found that Pelikan was in breach of its duty to make reasonable adjustments and had treated Mr Rothwell less favourably due to his disability. The less favourable treatment was not favourable.

Comments

Employers should always be consulted about medical information before making any decision with regard to the employee's employment. Employers should therefore remember to consult employees about medical reports before implementing proposals. This is especially important if there is conflicting medical opinion. Employees must therefore also take on board any points the employee raises regarding their position.