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How should employers handle a potential dismissal arising from absence due to a disability?

Article kindly contributed by: Flint Bishop Solicitors

A recent Employment Appeal Tribunal (EAT) decision provides employers with guidance on how to deal with dismissals related to sickness absence caused by a disability.

Mrs Boyers worked for the Department of Work and Pensions as an administrative officer from September 2005 until her dismissal due to capability issues in 2018.

In 2013, Mrs Boyers felt bullied and harassed by a colleague and said that the stress associated with this was affecting her health. The chronic headaches she frequently experienced resulted in her going on sick leave in early 2017 until September 2017.

Although at this time Mrs Boyers felt that she was ready to return to work, she did not feel able to do so at her contracted place of work, the DWP’s office in Middlesbrough.

In response to her concerns, the DWP put in place a six-week trial at an alternative office, however it was ultimately determined that this was unsuccessful and Mrs Boyers was required to return to the Middlesbrough office. Feeling unable to do so, Mrs Boyers remained absent from work and was ultimately dismissed for ill health capability in January 2018.

Mrs Boyers brought claims against the DWP in the employment tribunal (ET) including unfair dismissal and discrimination arising from disability under section 15 of the Equality Act 2010 (EqA).

Under section 15 of the EqA, an employer discriminates against a disabled person if they treat them unfavourably because of something arising in consequence of the disabled person’s disability. If an employer is able to show that the treatment is a proportionate means of achieving a legitimate aim, for example, that the treatment is justified, they can successfully defend a claim made under section 15 of the EqA.

Mrs Boyers argued that the DWP’s decision to dismiss her due to ill-health capability was discriminatory as the decision was made because of her absence from work, which she said arose from her disabling conditions (namely chronic migraines caused by stress and mixed anxiety and depressive disorder).

In the first instance, the ET found that the DWP’s decision to dismiss Ms Boyers constituted a breach of section 15 of the EqA. The ruling that the dismissal constituted unfavourable treatment or that it was due to something arising from Mrs Boyer’s disabling conditions (namely, her absence from work) was not disputed; however, the ET’s conclusion that the DWP was unable to demonstrate that the dismissal was justified due to significant flaws in their procedure was appealed to the EAT.

The appeal was initially successful on the basis that the ET had wrongly focused on the procedure leading to the decision to dismiss rather than the legitimate aims the DWP sought to rely on. The EAT then referred the case back to the ET for reconsideration.

The second ET reached the same conclusion, in that the decision to dismiss Mrs Boyers was disproportionate, which prompted the DWP to appeal once more.

In rejecting the DWP’s second appeal, the EAT held that there is no legal principle stating that the procedure leading to a dismissal is irrelevant when considering whether discriminatory treatment under section 15 of the EqA is justified.

The EAT felt that it would be much more difficult for an employer to show that a dismissal is justified where no evidence demonstrating the decision-makers’ thought processes could be produced regarding any legitimate aims the employer intended to rely upon.

In addition, the EAT recognised that a lack of evidence to demonstrate how the decision-makers had considered other less discriminatory options than dismissal would make it much more difficult to show that it had acted proportionately.

The EAT also disagreed with the DWP’s submission that contractual matters such as the job description or place of work were relevant for determining whether the actions taken had been proportionate. It held that if suitable alternative work was available in a location other than that listed in the employee’s contract of employment, that may constitute a non-discriminatory alternative to dismissal. It felt that to find otherwise might undermine the protections afforded to those with disabilities under the EqA.

This case demonstrates to employers the importance of exploring all reasonable avenues for securing a sustained return to work prior to dismissal where there is an underlying health condition that might constitute a disability under the EqA.

These should be analysed to determine whether they are likely to secure a return to work and whether they are justified on the basis that they are less discriminatory than other methods for dealing with the absence from work.

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