EXPERT WITNESS: Adjusting for absence

An illustrative case

Summary:

Diana Kloss examines a recent employment tribunal case in which an NHS Trust was found to have unfairly dismissed and discriminated against a disabled employee, despite her having taken extensive sickness absence. Had the employer implemented its own policies and followed good practice, the case could most likely have been avoided.

Decisions of employment tribunals (ETs) do not constitute legally binding precedents but are often cited in the media and taken by the public as authoritative illustrations of employment law and of the role of ETs. These reports are frequently misleading because they do not set out the detailed facts of the case nor explain the principles of law applied by the ET when reaching its decision on those facts. For that reason, they should be treated with caution and never quoted as an authority on the law unless and until the decision is appealed to the Employment Appeal Tribunal whose ruling does create a precedent, remembering that it is possible that the decision may be further appealed to the Court of Appeal and even further to the Supreme Court. Even then, the UK Constitution gives Parliament the power to pass legislation which overrules the decision of any court, even of the highest court…

 

Professor Diana Kloss MBE is a barrister, former part-time employment judge, and author.

Author: Kloss D

Tags discrimination tribunals and courts unfair dismissal

Occupational Health at Work April/May 2025 (vol. 21/6) pp34-37

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