Disability discrimination: Dismissal of disabled employee on long term sickness absence

Published 7 February 2023

THE FACTS

Mr McAllister worked for HMRC.  He suffered from anxiety and depression, which (it was later agreed in tribunal) met the threshold of a “disability”, and he was therefore protected by disability discrimination legislation.  He had high levels of sickness absence - 245 days on 23 occasions, spread over about two and a half years – and HMRC considered that his absence impacted on productivity and staff morale.  It also considered that all reasonable adjustments had been made, and it decided to dismiss him. 

Because he had been dismissed for capability, Mr McAllister was entitled to a payment under the Civil Service Compensation Scheme (the “CSCS”).  There is a discretion under the CSCS to award only a proportion of the sum fixed under the scheme.  100% of the sum fixed is payable where the employee has fully engaged in the capability process, including cooperating with measures to improve attendance, keeping in touch, and being proactive.  Because Mr McAllister had failed to engage with the process, the amount paid to him was reduced by 50%.  On appeal to the Civil Service Appeal Board, the award was increased to 80%. 

Mr McAllister claimed in the employment tribunal that he had suffered discrimination arising from disability in relation to his dismissal and in relation to the initial reduction of the CSCS payment. 

The employment tribunal held that, in dismissing Mr McAllister, HMRC had subjected him to unfavourable treatment due to something (his absences) arising in consequence of his disability.  However, the tribunal also found that his dismissal was objectively justified, being a proportionate means of achieving the legitimate aims of ensuring staff were capable of achieving a satisfactory attendance and achieving a good standard of attendance, which includes a fair, effective and transparent sickness management regime and efficient use of resources.  The dismissal was not therefore discriminatory.

The tribunal upheld Mr McAllister’s claim that he had been discriminated against in relation to the original decision to reduce the CSCS payment to 50%.  However, it went on to find that the appeal decision to increase the payment to 80% was objectively justified. 

In the EAT, Mr McAllister appealed the tribunal’s decisions in relation to his dismissal and the CSCS payment.  HMRC cross appealed the decision on the CSCS payment.   

The EAT found no fault with the tribunal’s decision that Mr McAllister’s dismissal was objectively justified, and it dismissed his appeal.

However, the EAT allowed HMRC’s cross appeal in relation to the CSCS payment.  To be successful in a claim that they have suffered discrimination arising from a disability, an employee has to show that they have suffered “unfavourable treatment”.  The treatment of which Mr McAllister was complaining was his entitlement to the payment under the CSCS.  He was entitled to this payment because of his disability related health condition.  The entitlement to a payment because of his disability could not therefore be “unfavourable treatment” – if anything, he was treated in this regard more favourably than if he had been dismissed for a reason other than his disability.  The fact that there had been a disability related reduction in the payment did not alter that, and the EAT considered that the tribunal had therefore erred in separating out the entitlement to the award from the calculation of the award. 

WHAT DOES THIS MEAN FOR EMPLOYERS?

This judgment, which is consistent with existing case law, is useful for employers, showing that where an employee is treated more favourably than other employees because of their disability, the treatment will not constitute discrimination arising from a disability, even if they could have been even more favourably treated.

This case is also a useful reminder of how important it is for employers, when considering whether to take action against employees for something that may be disability related (in particular, poor performance or sickness absence), to ensure that they consider whether there are less discriminatory options, whether there are any reasonable adjustments that should be made and that they can articulate the legitimate aim they are trying to achieve in taking the action. 

Mr J McAllister v  Commissioners for Her Majesty's Revenue and Customs