17/02/2020 Briefing

The UK Employment Appeal Tribunal (EAT) recently considered this issue in Shah v TIAA Ltd and concluded that the employer had acted lawfully in dismissing an employee even though the employee was still capable of performing certain tasks.  Although this decision is not authoritative in Ireland, it is a further useful consideration of the law in this complex area.

The case was an appeal to the EAT from a decision of an employment tribunal to dismiss the claim.   Ms Shah commenced employment as a senior audit manager in 2001.  The position required her to work anywhere within the geographical areas covered by the employer.  Her targets were set on the basis of a minimum number of chargeable days worked per year: 150 chargeable days would cover her salary.  Therefore, anything less than 150 chargeable days per year would create a financial loss for the employer.

As this was a client-facing audit role, site visits were an essential element of her job.  Over the course of 2016 and 2017, Ms Shah found traveling to client sites increasingly difficult due to back pain.  During this time, Ms Shah’s performance figure (i.e. the number of chargeable days she worked) dropped to 43%. Therefore, the issue of her continued capability in the role arose.

The employer met with Ms Shah and her trade union representative on a number of occasions to discuss whether any reasonable adjustments to her role were feasible.  The employer also organised a medical examination for her.  Ms Shah’s suggestions of reduced target hours and working mainly from home were rejected by her employer on the basis that her role was client facing and required a minimum number of chargeable days to be financially feasible.  After the meeting, the employer wrote to Ms Shah terminating her employment, citing that there was no likelihood that the position would change in the foreseeable future and advising her of her right to appeal.  Ms Shah’s internal appeal was unsuccessful.  She took her case to an employment tribunal and onto the EAT on appeal.

Suggestions for reasonable adjustments

The EAT stated that, at the pre-dismissal stage, the onus is on the employer, and not the employee, to propose reasonable adjustments.  The EAT considered that the employer should have actively considered reducing Ms Shah’s hours but noted the tribunal’s conclusion that Ms Shah was only able to perform 20% of her work and therefore found that reducing her role so significantly would not likely be a reasonable adjustment.

Financial losses

The EAT remarked that the demands made by Ms Shah and her trade union representative were unrealistic and would have caused continuing financial losses to the employer.  The EAT agreed with the tribunal in finding it was not realistic, nor reasonable, that the employer should carry financial losses in order to support the Ms Shah’s continuing in employment while working from home.

Legitimate aim and proportionality

The EAT again agreed with the tribunal in finding that the employer had a legitimate aim in dismissing Ms Shah, i.e. it was required to have a senior audit manager able to provide the services for which the clients had contracted.  Measuring hours by means of chargeable hours was also considered to be legitimate.

The EAT found that the dismissal was legitimate, proportionate and fair and it dismissed her appeal.

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