Many businesses put detailed policies in place to monitor and manage sickness absence, with references made to absence reporting, return to work interviews, “trigger levels” for formal action and cautions where absence is excessive.
In a recent case before the Employment Appeal Tribunal (EAT), the judge had to consider the fairness of an ill-health capability dismissal involving disability-related absence.
The employee in this case suffered from abdominal adhesions which caused a number of absences. The employer took steps to implement reasonable adjustments in order to meet its duties under the Equality Act 2010; such adjustments including allowing extra breaks and time off to attend appointments.
Under the employer’s sickness absence policy, if an employee took four periods of absence or 10 days of absence in any 12-month rolling period, this would result in a formal absence management process being triggered.
The employee in this had a significant amount of disability-related leave which was disregarded, but other absences which still meant the trigger point had been exceeded. A warning was then issued, followed by a final warning at a later stage. By this time, the employee had taken 41 weeks of absence in a three-year period.
Further disability-related leave was disregarded but, following a shoulder injury sustained by the employee, a further formal meeting was held and the employee was dismissed.
The employee claimed unfair dismissal and disability discrimination, on the basis that the previous warnings should have been disregarded as a reasonable adjustment.
An Employment Tribunal originally agreed with the employee and the matter was then appealed to the EAT. The findings of unfair dismissal and disability discrimination were overturned, with the following conclusions made:
The employee was put at a substantial disadvantage by the employer’s requirement for all employees to show consistent attendance at work. This therefore engaged the duty to make reasonable adjustments to remove any disadvantage
This placed a duty on the employer to take “such steps as is reasonable to have to take to avoid the disadvantage”. The EAT struggled to see how disregarding a warning would amount to a “step” for the purposes of the Equality Act
Irrespective of this, it would not be a reasonable adjustment to disregard the final written warning on these facts. A significant amount of leniency had been shown by the employer by disregarding a significant amount of disability-related leave in the past. To place a duty on an employer to disregard all disability-related leave, irrespective of the impact that would have on the business, would be too extreme a burden to place on the employer.
Therefore, the EAT determined that, on the basis of the live final written warning, the substantial absence since that time and medical evidence suggesting the absence patterns were likely to continue, the dismissal was fair and the employee had not been discriminated against.
The case does highlight the importance of the duty to consider reasonable adjustments where an employee has a disability. It is likely that a different conclusion would have been reached if the sickness absence procedure was followed without disregarding any disability-related leave.
Significant weight also appears to have been placed on the employer’s analysis of the impact of ongoing absence along with the qualitative, up-to-date medical evidence which had been gathered.
