Bulletins | March 30, 2023

Managing sickness absence – disability discrimination

Diagnoses of long term illnesses, such as Long Covid and those related to mental health, are on the increase. Alongside this is a a similar rise in disability claims being started against employers arising from how they manage (or fail to manage) those illnesses in the workplace.

Managing sickness absence is a delicate and tricky issue. Where an employee is eventually dismissed because they have been on long term sick leave, they may seek to assert that they are disabled for the purposes of the Equality Act 2010, and as such that they have been discriminated against because of something arising from their disability.  An employer is able to successfully defend such a claim if it is able to show that the dismissal or “treatment” was a proportionate means of achieving a legitimate aim. In this case, of McAllister v Commissioners for Her Majesty’s Revenue and Customs, the employee had been absent for a significant period of time over a number of years.

The employer, HMRC, eventually dismissed him on the basis of capability. His dismissal was found by the Tribunal not to be discrimination arising from a disability as it was a proportionate means of achieving a legitimate aim, which the EAT agreed with. One of the aims was the fair and consistent application of the employer’s absence management policies. The other aims were maintenance of a fair, effective and transparent sickness management regime and efficient use of resources and providing good customer service.

In this case, the Claimant also alleged unfavourable treatment in relation to the amount of a payment he was awarded under the civil service compensation scheme (“CSCS”) which is available to individuals who are dismissed from the civil service due to their capability. The payment made under this scheme was reduced by HMRC to 50% of the total available award, in line with their guidelines, because of the Claimant’s reluctance in engaging with HMRC processes designed to assist him in returning to work and his disruptive behaviour on the few days he did return. This was increased to 80% on internal appeal. The ET had made a finding that the decision to pay 50% was unfavourable treatment but the final figure paid, the 80%, was not. HMRC appealed on this point and the EAT found in their favour on the basis set out below.

The eventual finding of the EAT was that the payment under the CSCS (as opposed to the reduction in payment to 80%) was the treatment being considered and it was found that, because he was ultimately entitled to this payment because of his disability, the payment was not unfavourable treatment because of something arising from a disability and was, in fact, likely to be more favourable than if he had been dismissed for a reason other than his disability.  

Practical points for employers:

  • Ensure policies which relate to areas of the business that may be impacted by long term absence, such as customer service levels, are robust enough that they can be relied upon.
  • The employer must be aware of a disability for a claim for unfavourable treatment arising from a disability to succeed. However, ignorance is not bliss and it is the responsibility of the employer to do all it reasonably can to find out if a worker has a disability. Employers should engage with individuals who have persistent or long term sickness absence, obtain medical advice and take reasonable steps to assist a return to the workplace. 
  • If an individual’s repeated absence is having an impact on the business then keep a note of how and, where possible, to what extent the business is being affected.
  • In these cases, the tribunal are seeing whether there has been unfavourable treatment rather than less favourable treatment when compared to others. Treatment that is advantageous cannot be unfavourable even if it could have been “more favourable” (for example, paying the full amount available under the CSCS benefit in this case). There may be policies in place which provide such treatment and are invoked only on the occurrence of something which is more likely to affect disabled people (for example, those who are permanently unable to work). Check those policies to make sure that is clear in the policy/ scheme wording.