Mr Weerasinghe was a Consultant Cardiothoracic Surgeon at the Respondent Trust. He was disabled under the Equality Act 2010 as he had a fluctuating serious lung condition.

Mr Weerasinghe was dismissed by the Trust, purportedly for gross misconduct. The allegations against him were that he had shown a lack of probity by travelling to Ireland to attend job interviews and attending courses in the Netherlands and Germany while off sick, yet also during his sick leave he was not able to attend in person meetings with his line manager. He brought claims for discrimination arising from disability, indirect discrimination, failure to make reasonable adjustments, victimisation, automatic unfair dismissal due to whistleblowing, ordinary unfair dismissal and whistleblowing detriment.

The Tribunal found that the disciplinary proceedings that led to his dismissal were initiated because he had made protected disclosures about patient safety, therefore his claim of whistleblowing detriment succeeded. However, the Tribunal found that the decision to dismiss Mr Weerasinghe was not because of these protected disclosures but because of an assumption that he should not travel while on sick leave and a failure to admit relevant medical evidence on this point during the disciplinary proceedings. However, the Tribunal found that the decision maker did not have a reasonable belief that Mr Weerasinghe had committed misconduct and the Trust did not follow a fair process, therefore the dismissal was unfair in the ordinary sense. Mr Weerasinghe’s claim for discrimination arising from disability succeeded on the basis that he was subjected to a number of acts of unfavourable treatment which arose from his disability.

The Trust appealed against the finding in relation to the claim for discrimination arising from disability and the finding that the claims had been presented in time. Mr Weerasinghe cross-appealed against the rejection of the claims of automatic unfair dismissal, indirect discrimination and a failure to make reasonable adjustments. 

Although the Trust’s appeals were successful, the claim of discrimination arising from disability was remitted to the same Tribunal, to be decided on the basis of the findings of fact that had already been made. Following a second Employment Tribunal hearing on this point, Mr Weerasinghe was successful in his claim of discrimination arising from disability. The Tribunal found that (1) the allegation that he had misled his line manager about his ability to attend meetings in circumstances in which he had been in fact genuinely too unwell to attend and (2) his dismissal were acts of unfavourable treatment arising in consequence of disability contrary to section 15 Equality Act 2010. Further, both acts of unfavourable treatment formed part of a continuing course of conduct and the complaint was presented in time.

Following a complicated remedy judgment, Mr Weerasinghe was awarded just over £2.3 million.

The team of lawyers at BDBF acting in this case was Gareth Brahams and Arpita Dutt.

• ET remedy judgments
• EAT decision