Employers often find it difficult to deal with intermittent sickness absence but matters can be made much more complicated if the employee off sick is disabled. This is a reoccurring problem in practice so I am using this blog to analyse a recent interesting case on an employer’s legal obligations in this area.
Where an employer’s provision, criterion or practice (PCP) places a disabled person at a substantial disadvantage the employer is obliged to take such steps as are reasonable to avoid that disadvantage. In the recent case of General Dynamics Information Technology Ltd v Carranza the EAT ruled that it is possible for an employer’s requirement for consistent attendance at work to be a PCP and therefore if this places a disabled employee at a substantial disadvantage then the duty to consider reasonable adjustments is triggered.
In the Carranza case the employer had an absence procedure which excluded disability related absence in assessing the trigger for an absence review meeting (although it could be taken into account in deciding what action to take once the procedure was triggered). The employer took the employee through the procedure and issued him with a final written warning even though 90% of the absences were related to his disability. He then had a further period of absence which was unrelated to his disability and after advice from occupational health the employer dismissed him.
The EAT overturned the Tribunal’s findings of disability discrimination based on a failure to make reasonable adjustments and unfair dismissal. The EAT rejected the employee’s argument that the employer should have ignored the final written warning when deciding whether to dismiss the employee for the later absence.
The case confirms two important legal principals which are:
1. The mental process of disregarding a warning was not something that could form the basis of a reasonable adjustment (however formally revoking a warning could be capable of amounting to a reasonable adjustment).
2. There is only an obligation to consider the validity of warning given earlier in the process if it could be suggested that the warning had been given in bad faith or was manifestly inappropriate. This was previously the situation in relation to disciplinary warnings and in this case this principle was extended to warnings given in other types of case.
In a helpful judgment for employers the EAT went on to conclude that even if discarding a warning could have amounted to a reasonable adjustment it would not have been reasonable to disregard the earlier warning in the circumstances and the fact that the employer had shown leniency in the past by disregarding disability-related absences, did not mean it was legally bound to do so in future, when those absences were significantly impacting on the business. This was partly due to the fact that the employer had the benefit of an occupational health report which stated that the absence patterns were unlikely to improve. This case is the most recent in a growing line of cases in which the EAT has taken a narrow view of the scope reasonable adjustments can play in sickness absence procedures.
Employers should remember that if they have a robust sickness absence policy in place, which is applied consistently and occupational health reports are obtained where necessary they will be in an increasingly strong position to defend themselves against allegations that they have failed to make reasonable adjustments, if they choose to take into account disability-related absences. It does not follow that all absences related to a disability must always be discounted under such absence procedures.
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