UK: Disability discrimination: Dismissal for long-term sickness absence
Mr McAllister worked for Her Majesty’s Revenue and Customs (HMRC) as an administrative officer from May 2011. He suffered from anxiety and depression and had a lot of lengthy periods of sickness absence. HMRC considered that his absences were impacting on productivity and staff morale and that all reasonable adjustments had been exhausted. Mr McAllister was dismissed in December 2018. He received a payment under the Civil Service Compensation Scheme (CSCS), which was reduced by 50% because of his disruptive behaviour whilst off sick. The CSCS provides for payments for loss of employment on redundancy or certain other terminations including dismissal on grounds of efficiency.
Mr McAllister brought claims for discrimination arising from disability under section 15 of the Equality Act in relation to his dismissal and HMRC’s reduction of the Civil Service Compensation Scheme payment. For such a claim to succeed the employer must treat the employee “unfavourably” because of “something arising in consequence of the employee’s disability”. It is a defence for the employer to show that the treatment is a proportionate means of achieving a legitimate aim (the objective justification defence).
The Tribunal found that Mr McAllister had been dismissed due to something arising in consequence of his disability (his poor attendance record/absence from work). However, the dismissal was objectively justified because HMRC was able to show that its decision to dismiss for long term sickness absence was a proportionate means of achieving a legitimate aim – its aim being to maintain a fair, effective and transparent sickness management regime, and the efficient use of resources. The EAT agreed stating that the Tribunal had made a permissible finding that the aim of ensuring that staff were capable of demonstrating satisfactory/a good standard of attendance was legitimate and corresponded to a real need on the part of HMRC. In reaching its decision, the Tribunal had effectively balanced the reasonable needs of HMRC against the discriminatory effect on the Mr McAllister.
As regards the compensation scheme payment, the EAT said that any reduction made to payments under the CSCS for dismissal on grounds of efficiency due to disability related absence will not constitute discrimination arising from disability as entitlement to payment under the scheme is not unfavourable – in this case it was a benefit to which Mr McAllister would not have been entitled had he not been disabled.
Key Action Points for Human Resources and In-house Counsel
Disability discrimination claims frequently arise out of absence management scenarios such as dismissal for long term sickness. Where an employer has provided the employee with considerable support over a long period and followed a reasonable process such as in this case, there is a good chance that a dismissal can be objectively justified. However, every case turns on its merits and employers should tread extremely carefully when handling these sorts of cases.