Can delays in addressing misconduct concerns with employees render a dismissal unfair?
Yes, said the Employment Appeal Tribunal (EAT) in the case of O’Brien v Cheshire and Wirral Partnership NHS Foundation Trust [2025] EAT156, where delays had a significant impact on the employee’s ability to respond.
Background
Ms O’Brien (the Claimant) was a ward manager and was employed from 2009 with Cheshire and Wirral Partnership NHS Foundation Trust (the Respondent). Ms O’Brien also suffered from PTSD, anxiety and depression. She was dismissed on 30 March 2021, following a disciplinary procedure, because she was found to have failed to work her weekly contracted hours during a period from September to December 2018, and on one occasion to have claimed overtime for hours not worked.
Whilst the issues had been made known to Ms O’Brien’s line manager in December 2018 or January 2019, and a fact-finding exercise began on 2 January 2019, she was not spoken to about the matter at that point.
In late March 2019 Ms O’Brien suffered a serious health issue resulting in an operation and absence from work on ill health grounds from 31 March 2019 to 16 September 2019. She began a phased return, also taking some annual leave following her return. Her line manager had decided not to commence a formal disciplinary investigation during her absence because she was on long-term sick leave.
Only at a meeting on 7 October 2019 was Ms O’Brien informed that a formal investigation would be undertaken and of the nature of the allegations. By that point her ability to recall matters and put forward responses to the allegations had been affected by her PTSD. The disciplinary process ran for a lengthy period until she was ultimately dismissed on 30 March 2021. She brought claims to the Employment Tribunal (ET) for disability discrimination and unfair dismissal.
Although the ET accepted that because her disability affected her memory, the Respondent should reasonably have raised the concerns informally soon after they became aware of them, it ruled that her failure to make a reasonable adjustments claim was brought out of time, dismissing that, and also dismissed the unfair dismissal claim.
Ms O’Brien appealed the decision to the EAT.
Applicable Law
The question of whether a dismissal is fair or unfair requires consideration of section 98(4) of the Employment Rights Act 1996 (ERA) and must have regard to the reason (here alleged misconduct) shown by the employer and:
“(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.”
When a Tribunal is considering fairness, it must look at the entire process followed by an employer.
The ACAS Code of Practice on Disciplinary and Grievance Procedures includes, as one of the elements necessary to deal with issues fairly, raising issues promptly without undue delay in relation to meetings, decisions or confirmations of those decisions.
Section 20 of the Equality Act 2010 imposes a duty to make reasonable adjustments on an employer, which includes:
s.20(3) “…where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.”
Decision
The EAT ruled that the Tribunal had not properly considered the impact of the delay on the overall fairness of the dismissal and that the delay had significantly affected Ms O’Brien’s ability to defend herself against the allegations. As such, it remitted the matter back to the Tribunal for reconsideration of the unfair dismissal claim.
The EAT also directed that the Tribunal must reconsider the question of whether to extend time (for raising the reasonable adjustment claim) on a just and equitable basis. The time limit question had been approached from the wrong basis, including a focus on the wrong provision, criterion or practice (PCP) and consideration of irrelevant factors.
Also, any reasonable opportunity to make the required reasonable adjustment passed when Ms O’Brien went on long-term sick leave and so the relevant failure to make reasonable adjustments occurred by March 2019 at the latest, when the Respondent had not spoken to Ms O’Brien informally about the allegations.
Comment
This case reminds employers that the ACAS code remains central to assessment of fairness of processes, and that it is important to raise conduct concerns promptly, particularly if any delays may place a disabled employee at a disadvantage.
We recommend considering at an early stage whether there is a disability at play and, if so, whether any adjustments are required to the way the allegations are explored and addressed with the employee to ensure both fairness and legal compliance.
Published 16 January 2026
