Employment Law Cases

Ruiz Conejero v Ferroser Servicios Auxiliares SA

Absence management policies which dismiss disabled employees for intermittent absences must be objectively justified.

Background

Mr Ruiz Conejero, who is disabled, was subjected to a provision of Spanish national law (the Workers Statute) which provides that an employer can dismiss an employee for absences from work which amount to 20% of the employee’s working hours in two consecutive months. This is subject to the proviso that the total absences in the previous 12 months amount to 5% of working hours, or 25% of working hours in four non-consecutive months within a 12-month period. Mr Ruiz Conejero claimed that as his absence from work was caused by his disability, the provision discriminated against him because he is disabled. The Spanish court referred the matter to the ECJ.

ECJ decision

The Spanish Government argued that the aim of the provision in question was to combat absenteeism. The measure aimed to balance the interests of employers and the workforce by ensuring that employers can maintain their productivity while also ensuring that workers are not unreasonably dismissed.

The ECJ agreed that combating absenteeism in the workplace where there is evidence that it is causing material harm both at national level and to employers who must suffer its consequences represented a legitimate aim. But the ECJ also highlighted that in achieving this legitimate aim, the law allowing the dismissal of disabled employees for intermittent work absences which are related to the disability, must not go further than necessary to achieve this aim. The issue of whether it was appropriate and necessary was for the Spanish Court to decide.

Link to judgment: http://www.bailii.org/eu/cases/EUECJ/2018/C27016.html

Comment

The UK has no equivalent of the Spanish Workers statute. Instead, provisions on sickness absence trigger points are individual to each employer and are found in their absence management policies. The issue of whether such triggers discriminate against a disabled employee tend to be litigated in claims for failure to make reasonable adjustments, although courts have suggested in recent cases that claimants might be better off using the ‘discrimination arising from disability’ provisions of the Equality Act rather than the reasonable adjustments provisions.

This ECJ decision supports the position that the UK courts and tribunals have adopted in relation to the application of such policies to disabled workers, i.e. such policies are not inherently unlawful in relation to disabled workers (see for example, Jennings v Barts and The London NHS Trust - exempting a disabled employee completely from absence management policy was not a reasonable adjustment). However, employers must consider individual disabilities and potentially adapt their absence management policies to make some allowances for absences due to disabilities.

The Court of Appeal confirmed, in Griffiths v Secretary of State for Work and Pensions, that it was for a tribunal to consider objectively in each case whether the requested changes are reasonable or not. Here Ms Griffiths had 62 days off due to her disability. She received a warning under the absence management policy. She argued that her 62 days should have been disregarded completely and the trigger point adjusted to allow her an extra 12 days going forward. The tribunal found, and the Court of Appeal agreed, that neither of these were reasonable. The medical evidence indicated that these absences were not a one-off but that she was likely to have further lengthy absences and that in those circumstances it was not reasonable to ignore the first long period of absence and to make an arbitrary adjustment of the trigger point was of limited value. If the medical evidence is that an employee is going to have limited time off for their condition, then adjustment of the trigger points might be reasonable.

The EAT has suggested, in HMRC v Whiteley, two possible approaches to making allowances for absences caused by disabilities that interact with other ordinary ailments:

• Look in detail and with care and, if necessary, with expert evidence at the periods of absence under review and to attempt to analyse with precision what was attributable to the disability and what was not.
• Alternatively (and the EAT thought this would be more attractive for employers), ask and answer with proper information the question: what sort of periods of absence would someone suffering from the disability reasonably be expected to have over the course of an average year due to their disability?

In summary, each case should be considered on its own facts and will require detailed consideration of the employee’s medical condition and medical evidence as to the likelihood of them having time off in connection with their disability. Based on that, absence polices should be adjusted accordingly.