UK: Reliance on Sickness Absence to Justify Capability or Redundancy Dismissals - Can Disability-Related Absences be Taken into Account?

Last Updated: 9 March 2006
Article by Linda Farrell

Dismissing an employee who has, or may have, a disability covered by the Disability Discrimination Act 1995 ("DDA") is fraught with difficulties. That is so whether the dismissal is on grounds of redundancy or is based on capability, i.e. the inability of the employee to do the job for which they were employed due to excessive sickness absence.

Sickness absence is often factored into redundancy selection criteria, particularly in organisations where the number of working days lost each year is excessive. This can be done in a number of different ways. In its most simplistic (but potentially most problematic) form, there can be a single criterion based on the number of days’ sickness absence over, say, the last 3 years. At the other end of the spectrum, sickness absence can be one of a number of selection criteria and, in itself, can be formulated in a more sophisticated manner to take into account both number of days’ and frequencies of absences, whether the company reporting procedures have been followed and reasons for the absences, e.g. Are they work-related? Do they relate to a protected disability?

There is no hard and fast rule as to what factors may be taken into account when formulating redundancy selection criteria, but care should be taken to ensure that the criteria are as objective as possible. Thus, subjective assessments that require an evaluation of the "morality" of the absence, e.g. giving a higher "weighting" to an individual who is injured in a dangerous sporting activity than would be given to a person who suffers a heart attack, should be avoided.

Under section 3A(1) of the DDA, disability-related discrimination occurs if, for a reason that relates to the disabled person's disability, the employer treats them less favourably than he treats or would treat others to whom that reason does not or would not apply, and he cannot show that the treatment is justified. Thus, disability-related discrimination occurs when the reason for the less favourable treatment relates to the disability but is not the disability itself.

The appropriate comparator is a person to whom the disability-related reason does not apply. So, for example, where a disabled employee is dismissed after taking six months' sick leave, and the need to take the leave arose as a result of his disability, the appropriate comparator is someone (who may be able-bodied or disabled) who did not take six months' sick leave. This is a very low threshold for a disabled person to surmount, which leaves justification as the key issue in the majority of cases.

Less favourable treatment (e.g. dismissal) for a disability-related reason (e.g. sickness absence) can be justified if, and only if, the reason for it is both material to the circumstances of the particular case and substantial. Clearly, before contemplating dismissal, the reasonable employer will have ensured that he is fully informed of the circumstances of the absences by the employee and will also have obtained appropriate medical evidence about the reason(s) for the absences, the likelihood of further absences and the ability of the individual to carry out his job in the future. The possibility of making "reasonable adjustments" will also have to be considered. If the employer thereafter considers that he cannot continue to employ the individual on grounds of capability, or if the individual is at risk of selection for redundancy, then what about disability-related absences? Is it fair or unfair to take these into account in a decision to dismiss?

This issue arose in Royal Liverpool Children’s NHS Trust -v- Dunsby UKEAT/0426/05/LA. The employment tribunal had concluded that the decision to dismiss Mrs Dunsby - based on what it described as "an appalling sickness absence record" - could not be justified, as it was not "material and substantial". The tribunal’s reasoning was that: "but for the disability related absences, the claimant would not have been at risk of dismissal." The EAT criticised this approach as fundamentally wrong. It held that the provisions of the DDA:

"do not impose an absolute obligation on an employer to refrain from dismissing an employee who is absent wholly or in part on grounds of ill-health due to disability. The law requires such a dismissal to be justified…."

As to the tribunal’s view that absences for disability-related reasons should be discounted, the EAT said:

"It is common ground that the sickness absence procedure operated by the Trust did not require the employer to disregard disability-related absences. In the experience of this Tribunal, it is rare for a sickness absence procedure to require disability-related absences to be disregarded. An employer may take into account disability-related absences in operating a sickness absence procedure. Whether by doing so he treats the employee less favourably and acts unlawfully will generally depend on whether he is justified or not".

Although not mentioned in the EAT’s judgment, paragraph 2.13 of the Disability Rights Commission’s Code of Practice: Employment and Occupation 2004 recommends that disability-related sickness absence should be recorded separately under a company sickness policy and that redundancy selection criteria which include sickness absence should exclude disability-related absences. Although the Code does not have the force of law, its provisions may be taken into account by Courts and employment tribunals to assist them in interpreting the DDA.

Despite the DRC’s Code of Practice, there is no rule of law which says that an employer will be acting unreasonably if he includes disability-related absences as part of a totting up review process, or as part of a reason for dismissal on grounds of repeated absence. Conversely, exclusion of such absences could impact unfairly on employees who have suffered periods of ill health, but who are not protected under the DDA, and may also prove difficult to apply at a practical level (e.g. medical evidence may be required before such an exercise can be carried out). Thus, the facts of any particular case will be crucial and factors such as the length and frequency of absences (inclusion of frequent, short-term absences are more likely to be justified than a serious long-term absence), the inclusion of absenteeism as one of a number of different redundancy selection criteria (rather than the sole or leading criterion) and whether exclusion of disability-related absences would be a reasonable adjustment (and not simply viewed as an issue of justification), should all be considered carefully.

Aside from the discrimination issues that are relevant to any disability-related dismissal, an employer will also need to follow the statutory dismissal procedures (and any internal procedures) and ensure that a dismissal can be justified as fair under general unfair dismissal law principles.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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