There could be unlawful discrimination where (with no other jobs available) an employee was not warned he would be dismissed if he did not accept a revised role he had previously rejected.

The claimant was dismissed following a period of long-term sickness absence with depression. He rejected a revised, lower paid role. The employer told him it would try to find another role for him. It could not and so dismissed him

The claimant’s evidence was that he would have accepted the role offered if he’d understood it was the only alternative to dismissal.

The EAT held the failure to warn was unfavourable treatment by the employer potentially breaching s.15 EqA, depending on whether the employment tribunal concluded the treatment was materially influenced by the sickness absence, and any justification defence by the employer.

The tribunal also had not given reasons for holding the dismissal itself was justified under s.15 EqA, and would need to re-consider this. (The employer’s failure to give a clear choice between the revised role and dismissal would presumably be relevant there as well.)

The case is Aston v Martlet Group, www.bailii.org/uk/cases/UKEAT/2019/0274_18_2105.html

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