Background
Ms McLean, a Financial Assistant with fibromyalgia, worked permanently from home because restricted mobility made commuting and office work difficult. Her employer began a cost-reduction restructuring in 2024, proposing to remove her role and redistribute much of its work to the Finance Accountant. She was selected for redundancy and dismissed following a consultation process that the Employment Tribunal (ET) found inadequate.
The ET upheld her unfair-dismissal claim because the employer had effectively made the decision before meaningful individual consultation. It dismissed her direct disability-discrimination and section 15 Equality Act 2010 claims, however, accepting that the employer believed she could not perform the Finance Accountant role. It also found that she would in any event have been fairly dismissed by the date her employment ultimately ended, effectively eliminating compensable loss under Polkey.
The Court’s Holding
The EAT allowed Ms McLean’s appeal on the section 15 claim and substituted a finding that it succeeded. The ET had found that the burden shifted to the employer to prove that dismissal was not because of Ms McLean’s disability-related need to work from home. But the employer’s asserted reason—that it believed she could not perform the Finance Accountant role—arose only after the Finance Accountant resigned during Ms McLean’s notice period. It therefore could not logically have been an operative reason for the October 2024 dismissal decision.
The EAT also allowed the appeal against the ET’s Polkey findings. Although the employer had pleaded Polkey, the point was not included in the agreed list of issues or raised at the liability hearing, and neither party had been heard on it. That was a breach of natural justice. The EAT remitted the assessment of any Polkey reduction to the same ET at the quantum hearing.
Key Takeaways
- An employer cannot rely on a reason that arose after the dismissal decision to prove the reason for that dismissal.
- For section 15 Equality Act claims, the relevant question is whether the disability-related “something” had a significant, non-trivial influence on the treatment.
- An ET must give parties an opportunity to address a proposed Polkey reduction, even where it has been pleaded.
Why It Matters
The decision underlines the importance of a disciplined timeline in discrimination cases. A later assessment of an employee’s suitability for a vacancy cannot retrospectively explain an earlier dismissal.
It also confirms that a tribunal should not determine a potentially decisive compensation issue without notice and submissions. The remaining question is the chance that Ms McLean would have remained employed had there been a fair, non-discriminatory process, including one that accommodated continued home working.