Disabled employees can be sacked for poor attendance

Some employers think it isn’t possible to terminate the employment of an employee with a poor employment record if they are disabled. That’s not true. A recent case confirms that and illustrates how it can be a fair dismissal.

The employee had a long record of intermittent short term absences based on back problems, chest problems and stress-related conditions which were manifested as anxiety, panic attacks and sleep disorders. His absences were managed under a strict short-term absence policy. Meetings were postponed or held in his absence when he failed to attend. He was given a first written warning under the short-term absence policy and transferred to the employer’s long-term absence procedure. After an Occupational Health report the employee was asked to complete a “stress at work” questionnaire. He never did, despite a reminder. At a final stage meeting under the long-term absence procedure the employer took the view that the employee’s continued absence was unfair to colleagues, the department was under pressure, and there was a possibility the employee might not in fact return to work.

The employee’s claim for unfair dismissal was rejected. The Employment Tribunal and Employment Appeal Tribunal ruled that he had not been subject to discrimination on grounds of his disability. The employer had a duty to make reasonable adjustments but none had been suggested by the employee. It would not have been a reasonable adjustment for the employer to exempt the employee from its absence management policy.

Every case turns on unique facts. In this case the employer had followed set procedure which was strictly applied to all employees. An error in applying the policies did not invalidate them. Even the decision to terminate when the OH assessment said the employee might be ready for a phased return in a couple of months was upheld on the basis this was only a possibility. The EAT noted that the tribunal had found that “this was not a borderline case” as the employee’s absence record was “severely poor”; he had been absent for 100 days in the previous eight months.

The lessons? For employers it is to have policies to manage absences and to apply them consistently. For employees who have a disability it is to challenge the employer with practical reasonable adjustments that could overcome the effect of the disability (EAT) which then places the burden on the employer of justifying why they would not be reasonable or effective.

Equality Act 2010 places an employer under a duty to make reasonable adjustments where a provision, criterion or practice (PCP) applied by the employer, or a physical feature of the workplace, put a disabled person at a substantial disadvantage in comparison with persons who were not disabled. The duty is “to take such steps as it is reasonable, in all the circumstances of the case, for the employer to have to take in order to prevent the provision, criterion or practice, or physical feature, having that effect”.

Jennings v Bart’s and the London NHS Trust UKEAT/0056/12

For advice on Employment Law contact Neil Howlett or Andy Hambleton.