Disability discrimination: Ignoring final written warning for sickness was not a reasonable adjustment
Published 21 November 2014
In this case the EAT looked at whether an employer should have disregarded a disabled employee's final written warning for repeated sickness absence when deciding whether to dismiss him.
The Claimant suffers from a lifelong disability of stomach adhesions. He was employed by the London Borough of Lambeth as a customer services advisor from May 2008. He had very substantial periods off work. There were informal discussions about this, followed by a written warning. Occupational health advice was taken. Eventually Lambeth held a sickness panel hearing in September 2011. By this time the Claimant had been off for a total of 206 days in three years. His absences were mainly related to his stomach adhesions but there were also absences for a sprained ankle (6 days), a viral illness (9 days), flu (2 days), and a further 5 days of flu. Following his sickness panel he was given a final written warning to last for 24 months. He was sent a careful and detailed letter setting out the reasons for the warning. The Claimant TUPE transferred on 1 December 2011 to the respondent. He had two further periods of absence owing to his disability, which were relatively short and the respondent took no action in respect of them. The respondent continued to provide him with support at work and to make adjustments. However, the Claimant then sustained a painful shoulder injury and was off work for 3 months after which he returned to work. Shortly after his return he was referred to occupational health again. A physician said that the shoulder injury would last only a few months, but the Claimant's disability was life-long and his attendance record was likely to mirror that of the last few years. The respondent held a formal sickness hearing in December and the Claimant was dismissed. After an internal appeal, which was also rejected, he bought tribunal proceedings for unfair dismissal and disability discrimination based on a failure to make reasonable adjustments.
The lay members of the tribunal, in a majority decision, took the view that it would have been a reasonable adjustment for all disability related absences to have been discounted and for the final written warning to have been disregarded when the respondent considered whether to dismiss the Claimant. They also found that the Claimant had been unfairly dismissed because the respondent had acted unlawfully by discriminating against the Claimant and/or it had been unfair because a reasonable employer would have placed the single shoulder injury absence in context before considering the relevant sanction. The respondent appealed to the EAT. The EAT rejected the Claimant’s argument that the employer should have ignored the final written warning. In the EAT's view, the mental process of disregarding a warning was not the kind of "step" that is contemplated by the Equality Act 2010 in this context: steps are practical actions which are taken to avoid the disadvantage suffered by the disabled person, and not merely mental processes. Furthermore the tribunal had set out no sustainable basis for concluding that it was reasonable for the employer to disregard the warning.
The EAT also rejected the argument that the dismissal was unfair because the employer had failed to reconsider at the time of dismissal whether the earlier final written warning had been justified. There was nothing to suggest the warning had been given in bad faith or was manifestly inappropriate. The employer's appeal was therefore upheld.
What this means for employers
In this case, and others before it, the EAT have taken a narrow view of the scope of reasonable adjustments claims in relation to sickness absence procedures and dismissals. Indeed, in this case the EAT judge discouraged the use of reasonable adjustments claims where an employee has been dismissed for poor attendance. Instead, employees and potential claimants were urged to consider whether a failure to make reasonable adjustments was really in play, or whether their treatment was better analysed as discrimination arising from disability and/or indirect disability discrimination which their employer will then need to justify. Whether this advice is taken, only time will tell, but it could be that in the sickness absence scenario employers start to see a reduction in reasonable adjustment claims, and more claims of indirect discrimination and discrimination arising from disability as a result of what’s been said in this decision.