• Robert Spicer

Disability discrimination and dismissal

DISABILITY DISCRIMINATION

Dismissal tainted by discrimination

Case P2CG v Davis (2021) Morning Star, November 9, EAT

Facts D was employed by P as a business development director. In 2015 the company had three other directors: P, K and R. Following a performance meeting with the three other directors in June 2016, D was issued with a written warning for unsatisfactory performance and was told that if this did not improve within six weeks, further disciplinary action would be considered, including dismissal. In July 2016 D was diagnosed with type one diabetes. In August 2016 he was dismissed for poor performance. D claimed direct discrimination, discrimination arising from disability, indirect discrimination, failure to comply with the duty to make reasonable adjustments and harassment related to his disability. The employment tribunal (ET) found that D’s disability had significantly influenced the decision to dismiss him. The burden of proof then shifted to the three directors to prove that the dismissal was not because of his disability. They had not discharged this burden and the claims of direct discrimination were upheld. The directors appealed to the EAT, arguing that the tribunal had failed to properly apply the non-discriminatory reasons for the dismissal.

Decision 1. The appeal was dismissed.

2. D had been dismissed because his disability meant that his performance was less likely to improve.

3. As a matter of principle, a dismissal could be on legitimate performance grounds but materially tainted by discrimination.

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