Dismissing an employee: Sickness Absence
This is a question which I am asked on a regular basis by employers, who want to dismiss an employee for sickness absence, and employees who have been dismissed. There is a common misconception that an employer has to continue to employ a disabled employee regardless of sickness absence.
Whilst an employer’s obligation to a disabled employee are not infinite an employer does have an obligation to consider and make reasonable adjustments where necessary.
When an employer knows, or ought to know, that an employee has a disability they have a duty to make reasonable adjustments to ensure that a provision, criterion or practice (PCP) does not place a disabled employee at a substantial disadvantage compared to those who are not disabled.
In a recent case decided by the Employment Appeal Tribunal the question of reasonable adjustments was discussed and decided in a situation where an employee was dismissed for sickness absence.
An employer’s duty to make reasonable adjustments is set out in the Equality Act 2010, which provides:
“Where A’s provision, criterion or practice (PCP) puts a disabled person at a substantial disadvantage in comparison with those who are not disabled, A must take such steps as it is reasonable to have to take to avoid the disadvantage.”
This case involved Mr Carranza who had been employed by the London Borough of Lambeth (‘Lambeth’) as a Customer Services Advisor from 2 May 2008 until his employment transferred under TUPE regulations to General Dynamics Information Technology Ltd in December 2011.
Mr Carranza had a recognised disability of stomach adhesions since he was a young boy. During his employment with Lambeth they made adjustments for his disability, including giving him extra breaks and time for medical appointments.
Despite these adjustments Mr Carranza had substantial periods of absence from work. Lambeth went through various stages of their absence management procedures which included holding informal meetings and discussions with him, followed by formal written warnings. Occupational Health advice was sought and when his absence continued Lambeth held a sickness panel hearing in September 2011.
By the time of the sickness panel hearing Mr Carranza had been off for a total of 206 days (41.5 weeks) in three years of which nearly 37 weeks were disability-related. Approximately 4 ½ weeks of his absence were unrelated to his disability.
The result of the sickness panel was that Mr Carranza received a final written warning. The panel gave detailed and clear reasons for their decision to issue a final written warning, and it was clear that consideration had been given to adjustments throughout the absence management procedure. The panel also made reference in their decision to the severe impact the absences were having on the business unit. Mr Carranza’s warning stayed on his personnel record for 24 months following issue.
Shortly after the written warning his employment transferred to General Dynamics Information Technology Ltd.
After receiving the written warning Mr Carranza had two further short disability-related absences and his employer took no further formal action under the absence procedure. However, when he suffered a shoulder injury which caused him to be absent for three months his employer took advice from occupational health.
The advice they received was that whilst his shoulder injury would last for only a few months his disability was a lifelong problem and it was likely to cause similar periods of absence in the future.
As a result of his further period of sickness absence a hearing was arranged and Mr Carranza was dismissed.
He disagreed with the employer’s decision and issued a claim in the Employment Tribunal for disability discrimination and unfair dismissal.
At the first instance hearing the Employment Tribunal found in favour of Mr Carranza and stated that the general requirement for consistent attendance at work was a relevant “provision, criterion or practice” which put him at a substantial disadvantage compared to non-disabled employees. The employer had disregarded disability-related absence in the past and it would have been reasonable for it to do so again by disregarding the final written warning that had been given.
The employer appealed and the Employment Appeal Tribunal agreed with the employer’s arguments and decided that the Employment Tribunal had made an error in their conclusions.
Whilst the Appeal Tribunal agreed that the requirement for consistent attendance at work was a “provision, criterion or practice” they did not agree that a “step” which the employer should take to make a reasonable adjustment was to disregard the final written warning.
The Appeal Tribunal did not agree with Mr Carranza’s argument that because the employer had disregarded two periods of disability absence it was reasonable for them to disregard all disability-related absence prior to that time whatever the impact on the business of doing so.
The Equality Act states that employers must take “such steps as it is reasonable to have to take to avoid the disadvantage”. The Appeal Tribunal decided that ignoring the final written warning, and all disability related absence was not a reasonable step to take.
With regards to the unfair dismissal claim the Appeal Tribunal decided that the dismissal was not unfair and stated that there are limits to the extent to which an employer can be expected to revisit what took place at an earlier stage of a process, i.e. at the final written warning stage.
Points to note
In this case the employer had taken a long time, and had given the employee many opportunities to improve his attendance, before dismissing him. Crucially they also obtained medical advice from occupational health about his condition.
Faced with long periods of absence, the impact on the business and the fact that there was unlikely to be any future improvement in attendance it was reasonable for the employer to terminate the employee’s employment.
It is recommended that, if you find yourself in a similar situation, that you seek advice and proceed with caution before making a decision to dismiss as there can be a fine line between behaving reasonably, and discrimination.
If you would like to read the full Judgement you can do so by clicking on the case name General Dynamics Information Technology Ltd v Carranza