| In the case of O’Brien v Cheshire and Wirral Partnership NHS Foundation Trust, Ms O’Brien was dismissed for misconduct after allegations that she had failed to work her contracted hours and falsely claimed overtime. The Trust became aware of the concerns in 2018 but did not speak to Ms O’Brien about them until a year later, by which time her ability to recall events had been affected by PTSD.
The Employment Appeal Tribunal found that the original tribunal had not properly considered the impact of this delay on the fairness of the dismissal. The EAT held that:
- The tribunal had accepted that the delay significantly affected Ms O’Brien’s ability to defend herself, yet failed to reflect this in its finding on fairness. The fair dismissal decision was therefore quashed, and the claim sent back for reconsideration.
- The tribunal also needed to revisit its decision that Ms O’Brien’s reasonable adjustments claim (which focused on a failure to speak with her informally about the allegations) was out of time. The EAT clarified that the relevant failure occurred when the employer missed the opportunity to speak with her promptly – identified as March 2019 at the latest – and that the question of whether to extend time on a just and equitable basis must be reconsidered.
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