Dismissal, disability and long-term sickness
McAllister v Revenue and Customs Commissioners
A disabled employee’s dismissal was not discrimination arising from a disability because it was a proportionate means of achieving the employer’s legitimate aim of maintaining good staff attendance.
Under s. 15 of the Equality Act 2010, a person will discriminate against a disabled person if they treat the disabled person unfavourably because of something arising in consequence of their disability. However, a claim will not succeed if, among other things, the treatment can be objectively justified.
Mr McAllister worked from HMRC from May 2011. He suffered from anxiety and depression and had a lot of lengthy periods of sickness absence some of which were not related to his mental health condition. Between 2016 and 2018, he was off work for 245 days on 23 different occasions. He was dismissed in December 2018 as HMRC considered that his absences were impacting productivity and staff morale and all reasonable adjustments had been considered. At the time of his dismissal, he’d been absent for seven months and was unfit to return to work in any capacity. He bought tribunal claims for, among other things, discrimination arising from disability (Equality Act 2010, s. 15). A tribunal rejected his claims and he appealed.
The appeal in relation to s. 15 and dismissal was dismissed.
While HMRC acknowledged that Mr McAllister’s dismissal was unfavourable treatment, it argued that it was a proportionate means of achieving a legitimate aim, namely:
- to ensure staff were capable of demonstrating satisfactory attendance and a good standard of attendance (comprising the aims of the maintenance of a fair, effective and transparent sickness management regime and efficient use of resources)
- to provide a good customer service, and
- to apply its policies fairly and consistently
The EAT could find nothing wrong with the tribunal’s approach to objective justification. As regards 1, this was a legitimate aim and corresponded to a real need on the part of HMRC. Having found that Mr McAllister’s absence adversely impacted HMRC (particularly on management time dealing with Mr McAllister’s absence and staff morale), the tribunal carried out the requisite balancing exercise, having regard to the discriminatory impact of the dismissal on Mr McAllister. The tribunal had also considered whether the employer’s aims could have been achieved via les discriminatory measures (e.g. waiting longer, giving further warnings, etc.). It found that these would not have been appropriate to achieve the aims of ensuring satisfactory attendance and a good standard of attendance, comprising the maintenance of a fair, effective and transparent sickness management scheme and an efficient use of resources. As for 3, the EAT endorsed the tribunal’s finding that it was a legitimate aim for the employer to apply its policies fairly and consistently. Given the particular policy in question - which emphasised the need to deal with each case on its own facts, and allowed for different treatment for those who were disabled - the fair and consistent application of that policy was not necessarily discriminatory.
Employers dealing with sickness absence issues can take comfort from this decision given the view of the EAT that requiring satisfactory levels of attendance and considering the impact of absences on colleagues and their morale were legitimate aims that the employer was entitled to consider when dismissing an employee for absence relating to a disability – as long as all reasonable adjustments have been made and alternative roles (where applicable) have been considered.
Similarly, in Preston v E.ON Energy Solutions Ltd, the employee was dismissed following lengthy absences, some of which were disability related. The EAT held that a tribunal had been entitled to find that the employee’s dismissal was a proportionate means of achieving the employer’s legitimate aim of efficient absence management, given the employee’s continued refusal to respond to reasonable management requests in circumstances in which occupational health had advised that he was fit to return to work and all reasonable adjustments had been made to enable him to do so.