Long term absences – discrimination arising from disability

Long term absences – discrimination arising from disability

Long term absences can have a detrimental impact on a business and should be dealt with via the employer’s Absence Policy. In some cases it may lead to dismissal on grounds of ill health capability. This is one of five lawful reasons for which an employer can dismiss an employee.  As long as the employer also follows a fair procedure, the dismissal will be fair.

However, employers should be cautious with disabled employees. If a disabled employee is subject to unfavourable treatment (including dismissal) because of something arising in consequence of their disability (in this example, their sickness absence), it will be discriminatory unless their employer can show there was a legitimate aim for the treatment.

This was considered recently in Department for Work and Pensions v Boyers. Mrs Boyers suffered from chronic migraines and a mixed anxiety and depressive disorder which affected her attendance at work.

During her employment she raised a grievance against her line manager’s handling of her complaint. It was agreed that Mrs Boyers could trial working in a different location. The trial period was considered unsuccessful by the DWP: it was withdrawn without notice, explanation, right to appeal or even discussion with Mrs Boyers. Mrs Boyers was told to return to her original place of work but was signed off as unfit to return to work.

Save for the weeks she attended the trial period, Mrs Boyers had been absent from work for almost 12 months. During this time, DWP initiated their Absence Policy for long term absences and Mrs Boyers was dismissed on grounds of (ill health) capability.  

Mrs Boyers succeeded in her claims of unfair dismissal and discrimination arising from disability. The DWP appealed this decision.

On appeal, the DWP argued that the tribunal should have considered the DWP’s aims (i.e. the impact it was having on their staff and the costs of the long term absences on their limited public funds) and whether the dismissal was proportionate in the circumstances – and not the procedure leading up to the dismissal. The Employment Appeal Tribunal (EAT) disagreed and dismissed the appeal.

The EAT found that the procedure leading to an employee’s dismissal is not irrelevant when considering whether the decision was proportionate. The key question for the tribunal is whether the outcome of the decision-making process was capable of justification, and in these circumstances it was not. The tribunal had found, and the EAT agreed, that the DWP had failed to properly evaluate the trial and that, if it had done so, it may have avoided Mrs Boyer’s dismissal.

The DWP also argued that ‘proportionality’ should be limited to the terms expressed in the contract of employment (i.e., Mrs Boyers’ normal place of work). The EAT disagreed on the basis that this would undermine the very principle of the protection afforded to disabled employees. As such an ET should be able to consider redeployment to another location outside the strict terms of the contract when this may be a less discriminatory alternative to dismissal.

Balancing the needs of a business against the needs of employees can be difficult. Clear and defined attendance policies should be in place as well as consideration of whether an employee’s long term absences are related to a disability.  If it is, adjustments may be required.

You can read the full judgment here.

This blog update was written by Jo Sinclair, Solicitor at didlaw.