Dismissal for long-term sickness absence was not discriminatory

Dismissal was a proportionate means of achieving legitimate aim of ensuring staff were capable of satisfactory attendance.

When dealing with employees absent from work due to sickness employers need to be mindful that they do not discriminate against the absentee on the grounds of disability.

Discrimination can arise directly or indirectly, but it can also ‘arise from disability’ under s.15 Equality Act 2010, which states this occurs where:

• a person (A) treats another (B) unfavourably because of something arising in consequence of B’s disability, and
• A cannot show that the unfavourable treatment of B is a proportionate means of achieving a legitimate aim.

Employers need to be alert to the fact that long-term sickness absentees, or those with frequent shorter term absences, may have a condition that meets the broad definition of a ‘disability’ under the Equality Act. If absence at work is linked to an absentee’s disability, an employer applying an absence procedure and sanctions may be in breach of s.15.

However, employers will be able to defend such claims if they can show that the unfavourable treatment was proportionate in the pursuit of a legitimate aim.

A recent Employment Appeal Tribunal decision highlighted the nuances involved in determining whether an employee has suffered unfavourable treatment and, if so, whether the employer can justify it as a proportionate means of achieving a legitimate aim.

Case: Mr JMcAllister -v- Commissioners for HM Revenue and Customs [2022]

Mr McAllister began work with HMRC in 2011. HMRC accepted that for the purposes of the claim (and for the purposes of the Equality Act), Mr McAllister was disabled on the basis he suffered from anxiety and depression.

After several months’ sickness absence an Occupational Health report was obtained in early 2017 which stated Mr McAllister had ongoing stress, anxiety and depression triggered by work issues. A few months later, Mr McAllister was put on a phased return to work and invited to a formal attendance meeting where he was issued a first written improvement warning. Adjustments were put in place for Mr McAllister at work, which he confirmed were satisfactory.

In August 2018 a further OH report was obtained which confirmed Mr McAllister should be able to return to work with support. However, Mr McAllister’s absences continued despite additional adjustments being explored..

HR advised that the case would go to a decision-maker with a recommendation of dismissal as HMRC could no longer support Mr McAllister’s absence. Having considered the information before them, the decision-maker concluded the absence could no longer be supported and Mr McAllister was informed of the decision to dismiss him. Mr McAllister appealed the decision, but this was not upheld.

On dismissal Mr McAllister was awarded a payment under the Civil Service Compensation Scheme, as his dismissal was for reasons out of his control. However, this payment was reduced by 50% due to a lack of co-operation with the process. This was later amended to an 80% reduction after an appeal through the scheme.

Mr McAllister brought claims under s.15 of the Equality Act for discrimination arising from a disability.

Tribunal decision

It was commonly accepted that Mr McAllister’s dismissal amounted to unfavourable treatment and that as disability-related absences had led to dismissal, the unfavourable treatment was due to something arising in consequences of his disability.

The Tribunal found that the dismissal was a proportionate means of achieving a legitimate aim, to: (i) ensure staff were capable of demonstrating satisfactory attendance levels; (ii) provide a good customer service; and (iii) apply policies and procedures fairly and consistently. On this basis, Mr McAllister’s s.15 claim in relation to his dismissal did not succeed.

Mr McAllister also brought a s.15 claim in relation to the reduction of his Civil Service Compensation Scheme payment. The Tribunal agreed with the claimant that the reasons for the reduction were in part connected with his disability and upheld this aspect of the claim.

The Tribunal also found Mr McAllister’s dismissal on capability grounds to be fair, noting that HMRC had issued warnings and made genuine attempts to get Mr McAllister back to work based on OH report information and consultation with Mr McAllister, but that ultimately he was not able to do so.

EAT decision

On appeal, Mr McAllister highlighted the lack of evidence in respect of the legitimate aim ground (ii) above and argued this was fatal to the issue of objective justification for the unfavourable treatment. Mr McAllister argued that ground (ii) presented a ‘real need’ whereas ground (i) was not. He also claimed that ground (iii) was inherently discriminatory and likely to disadvantage disabled workers.

The EAT concluded that the Tribunal was entitled to find that HMRC presented legitimate grounds for its actions based on the evidence presented to it, even if there was no specific evidence to ground (ii). The EAT also found it it was open to the Tribunal to consider the views of HMRC management on the impact of Mr McAllister’s absence in this area.

The EAT dismissed Mr McAllister’s appeal.

The EAT also considered HMRC’s appeal in relation to the finding that the Civil Service Compensation Scheme payment was discrimination arising from disability.  The EAT held in HMRC’s favour, that the ‘relevant treatment’ in this case was the payment of an award to the claimant and this was beneficial to him, rather than being unfavourable treatment.

Impact

The findings of the EAT underline the importance to employers of considering whether absences are linked to disability when following absence management procedures.

It is a common perception among employers that where an employee presents with a disability, there is relatively little they can do without falling foul of discrimination law. It is the case that there is an increased risk of claims where dismissal is because of disability-related absence, as this will be unfavourable treatment because of something arising from disability. However, the key for employers is ensuring that the dismissal is justified as a proportionate means of achieving a legitimate aim and that this can be evidenced should a claim be brought.

As seen in this case, HMRC was able to demonstrate that Mr McAllister’s absence was putting a strain on resources and that HMRC had done what it could to try and return him to work with the assistance of OH support and exploring reasonable adjustments.

Employers should be prepared to evidence the legitimate aims, which means significant thought must be given before dismissal to what the aims are, how continued absence affects them, and how the unfavourable treatment considered will achieve the those aims. Evidence should also be gathered to show that the decision to dismiss is proportionate, including evidencing impacts of the absence on the business, other staff and resources.