Tribunal issues landmark decision on disability discrimination and unfair dismissal in Guernsey

The Guernsey Employment Tribunal delivers first disability discrimination decision under the Prevention of Discrimination (Guernsey) Ordinance, 2022.

Background

The applicant, a carer employed by Cheshire Homes from June 2023 to August 2024, had a history of cancer treatment, ongoing side effects including fatigue and a stoma bag, and multiple periods of sick leave. After returning from a period of absence, she attended a return-to-work meeting where discussions centred on her fitness to work. The employer believed there was a mutual agreement that she would take a break, but she later clarified she had not resigned. The employer proceeded to treat her employment as terminated.

Issues

The tribunal considered whether Ms Cortez had (a) resigned and (b) if not, whether she was unfairly dismissed. It also considered whether Ms Cortez (a) had a disability; (b) her employer knew of her disability and (c) whether she was discrimination against on the basis of that or because of something arising from that disability.

Findings

The tribunal found she had a disability under the Ordinance, and that the employer was aware of her disability, but concluded no discrimination occurred. It had regard to the fact that reasonable adjustments had been made, but capability concerns remained substantiated. It was determined that Ms Cortez was not capable of performing the role for which she was employed. It therefore dismissed the claim of discrimination having regard to section 23 of schedule 1 of the Ordinance – which provides that there is no requirement to employ persons who cannot fulfil the essential functions of their role.

However, the tribunal found that Ms Cortez had been unfairly dismissed because her employer failed to confirm her resignation intentions (finding that Ms Cortez had not resigned) and further that her employer did not follow fair a fair (or any) procedures in effecting her dismissal.

Compensation

The tribunal awarded Ms Cortez £6,172.13, which amount had been reduced by 25% to reflect that a fair, capability-based dismissal would, on the balance of probabilities, likely have occurred if proper procedures had been followed.

Key takeaways

• Employers must document any resignation discussions and agreements clearly.
• Fair procedures remain essential, especially where misunderstandings may arise.
• Capability concerns may justify dismissal even where disability exists, provided that reasonable adjustments are first explored and applied before determining that an employee is not capable of fulfilling the essential functions of the role.
• The tribunal will exercise its powers to reduce compensatory awards where the dismissal would have occurred in any event.