Fair process and disability: EAT guidance on delay in disciplinary cases

26 November 2025

The Employment Appeal Tribunal has revisited the boundaries of a fair disciplinary process and the treatment of disability-related disadvantage in O’Brien v Cheshire and Wirral Partnership NHS Foundation Trust.

The Claimant, Ms O’Brien, an employee of the Trust, faced allegations that she had failed to work her contracted hours and had falsely claimed overtime. Although concerns first came to light in 2018, the Trust did not raise them with her until a year later. By that stage, the Claimant was suffering from PTSD, which materially affected her ability to recall events and respond effectively to the allegations. The Employment Tribunal acknowledged that the delay had significantly impaired her ability to defend herself, but nonetheless found the dismissal fair.

On appeal, the Employment Appeal Tribunal held that this approach was flawed. The tribunal had accepted that the delay had real evidential consequences for Ms O’Brien and had made specific findings about the impact of her PTSD on her recollection. However, it failed to integrate those findings into its assessment of procedural fairness under section 98(4) of the Employment Rights Act 1996. Having acknowledged a substantial disadvantage, the tribunal was required to consider whether the employer’s handling of the investigation and disciplinary process fell within the range of reasonable responses in circumstances where the delay had compromised the employee’s ability to respond. The EAT concluded that the tribunal had not conducted this analysis, and that its reasons did not support the outcome. The finding of fair dismissal was therefore set aside and remitted for reconsideration.

The EAT also addressed the tribunal’s treatment of the Claimant’s reasonable adjustments claim. The claim centred on the Trust’s failure to speak with her informally about the concerns at an early stage, and the tribunal had held the claim to be out of time. The EAT found that the tribunal had mis-stated when the alleged discriminatory failure occurred. On the facts, the relevant failure was the employer’s missed opportunity to speak to the Claimant promptly, which arose no later than March 2019. The question of limitation therefore required reassessment, together with whether it would be just and equitable to extend time. The matter was remitted for fresh consideration.

The decision emphasises that tribunals must properly assess the fairness of an employer’s procedure where evidential disadvantage arises from delay, particularly in cases involving disability. It also serves as a reminder that reasonable adjustment claims involving failures to act require careful attention to timing.

For employers, the case highlights the importance of addressing concerns promptly and ensuring that delays do not place disabled employees at a disadvantage that may render the disciplinary process unfair.

For advice on fair disciplinary procedures and disability considerations, contact the Backhouse Jones Employment team.

This article was written by Gabrielle Scriven.