Disability discrimination: Guernsey Tribunal's first substantive decision

The Guernsey Employment and Discrimination Tribunal has delivered its first full decision in relation to a claim of disability discrimination. While the new disability discrimination legislation came into force on 1 October 2023, up to now the Tribunal's decisions have related to earlier procedural steps in claims.  In this case, Cortez v Guernsey Cheshire Home LBG, the Tribunal considered whether the employer had discriminated against a former employee whose employment was terminated due to disability-related absence and performance issues.

What happened in this case?

The Applicant, Mrs Cortez, was employed as a carer by the Respondent, the Guernsey Cheshire Home LBG which is a charitable care home. The Applicant was in remission from cancer and her treatment left her with a stoma bag, fatigue, and a weakened immune system, which made her more susceptible to illness. She also had some memory issues, which meant that she struggled to retain information about care routines. During her employment, the Respondent made a number of accommodations for the Applicant, including extending her probation, placing her on outreach duties and pairing her with a senior carer.  However, despite these steps, her sick leave levels continued to rise, and the Respondent had concerns about her ability to fulfil the essential functions of her role. 

After a further period of holiday and sickness absence, a return-to-work meeting was held, with the intention of discussing whether the Applicant was ready to return after her absence.  However, the discussions in the meeting extended to include the Applicant's absences, her health and her capability to perform her role.  The meeting resulted in a plan for her to resign, take a break from work and then reapply when her health improved. 

The next day the Applicant sent a WhatsApp message to the acting home manager stating, 'I won't be writing out my resignation as I've not handed in my notice. U let me g'. Despite this message, the Respondent treated her employment as having been terminated with immediate effect and it sent a follow-up letter confirming as much, without revisiting whether the Applicant had truly understood or agreed to the plan. The Applicant subsequently filed complaints of unfair dismissal and disability discrimination. 

Was the Applicant dismissed and if so, was her dismissal unfair?

The Tribunal found that even if the Applicant had verbally agreed to "take a break" and resign, she subsequently confirmed that she did not intend to submit a resignation letter. The Tribunal held that the Respondent had a duty to check the Applicant fully understood what had been discussed, particularly given her known confusion and memory issues. Instead, the Respondent treated her employment as terminated with immediate effect, despite the absence of a resignation letter and a contractual requirement for one month's written notice. The Tribunal concluded that the Applicant was effectively dismissed and that the process was unfair. 

How much was the employee awarded for the unfair dismissal claim?

The starting point was six months' pay, being £8,229.51. The Tribunal declined to reduce the award for the Applicant's refusal of a subsequent offer of reinstatement, finding this was not unreasonable given her health and the damaged working relationship. However, it reduced the award by 25% on the basis that, in all likelihood, the Respondent would have dismissed the Applicant in any event on capability grounds, even had a fair process been followed. The final award was £6,172.13.

What was the Tribunal's thinking on the disability discrimination claim? 

The Tribunal accepted, on the balance of probabilities and without medical evidence, that the Applicant had a disability, arising from previous cancer, its treatment and her stoma bag. It also found the Respondent was aware of the disability. However, the Tribunal was satisfied that the Respondent had made reasonable adjustments and that, even with those adjustments, the Applicant could not fulfil the essential functions of her post. The discrimination claim was accordingly dismissed.

Key points for Guernsey employers

• Employers can rely on the statutory defence that an employee is unable to fulfil one of the essential functions of the role, even where a fair dismissal process is not followed. The Respondent was able to rely on this defence because it could show that reasonable adjustments had been made. Employers should document the adjustments they have made and the reasons why the employee still cannot perform the role.
  
  
• Avoid relying on a verbal agreement to resign. Even if an employee appears to agree to resign at a meeting, an employer would be wise not treat the employment as conclusively terminated until written resignation is received. This is especially important where the employee is vulnerable or prone to confusion. 
  
  
• Follow up on contradictory communications.  Employers should treat such messages carefully and should re-engage rather than proceed on the basis of a purported verbal agreement. 
  
  
• Medical evidence is not necessarily required to prove disability under the Ordinance. The Tribunal accepted the Applicant's disability based on her testimony alone, although it noted medical evidence would have been helpful.
  
  
• Compensation can be reduced where the applicant would likely have been dismissed in any event had a fair process been followed. The Tribunal in this case reduced the award by 25%.
  
  
• Refusing reinstatement will not automatically reduce an award. The Tribunal found the Applicant's refusal of reinstatement was not unreasonable in the circumstances, including the damage to the working relationship and her health situation at the time.

How we can help

Our Employment team advises on the full spectrum of employment and discrimination related claims and issues as well as providing non-contentious advice and support on documentation, procedures and processes.  We provide in-house training sessions to support businesses in upskilling directors, managers and employees on discrimination issues and conduct at work.

We were selected by the States of Guernsey's Committee for Employment and Social Security as the external counsel responsible for leading the creation and delivery of training on all legal aspects related to the new Discrimination Ordinance. As such we were a lead partner in the Consortium responsible for supporting the implementation of the new Discrimination Ordinance. 

Working alongside our Dispute Resolution and Regulatory colleagues we can assist with all types of discrimination challenges including those facing regulated businesses or professional individuals.