Health and safety prevents dismissal being discriminatory: Farmiloe, a warehouseman, suffered from the skin disease psoriasis, which meant he was unable to wear safety footwear or headgear as required to be worn in the warehouse. An exception was made for him to continue to wear his own shoes until a health and safety officer insisted that this could not continue.
Farmiloe was suspended on full pay pending an assessment to ensure that proper footwear could be obtained. This proved to be impossible. There was no alternative employment available and Farmiloe was dismissed.
Farmiloe brought proceedings against his employer and the council. The tribunal found that he had been discriminated against on the grounds of his disability by both respondents. They both appealed to the Employment Appeals Tribunal (EAT).
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The EAT held that the health and safety legislation imposed an absolute duty on the employer. As Farmiloe suffered from a disability, the employer was under a duty to make reasonable adjustments. The employer had taken all steps available to it and the only possible course of action was dismissal.
Farmiloe also argued that there is no common law duty on an employer to dismiss an employee who wishes to carry on working even if to do so exacerbates a medical condition. The EAT, however, held that where an employer will be breaching health and safety regulations by continuing to employ the individual, it will be in breach of its common law duty and will be obliged to dismiss him.
