Dismissed While Off Sick – is it Discrimination?
Joseph Weston, Employment Solicitor
A concern that many have when they are off sick is job security. Some employers can be very understanding and allow their employees plenty of time to recover. However, even those employers do not have limitless patience.
Since many who are off sick for a long time have a health condition which affects their ability to go to work, it is likely that they will have a disability for employment purposes.
In general, this means that the employer must not treat the employee less favourably because of their disability or any symptoms of their condition than they would treat others. The employer must also make reasonable adjustments to ensure that the employee with the disability is not put at a disadvantage.
However, there are often qualifications to those rules.
Many employers will know that they cannot dismiss somebody because they have a disability. Instead, in the example of a person who has been off work for a long time, they will dismiss them because of their absence.
The employee will argue that they have only been absent because of their disability, so they have been treated less favourably because of something which arises from their disability. This is the basis of a claim for ‘discrimination arising from disability’ under section 15 of the Equality Act 2010.
However, employers have a couple of defences to that claim. The important defence in these circumstances is whether they can show that their treatment of the employee was a ‘proportionate means of achieving a legitimate aim’.
The Employment Appeal Tribunal had to consider these circumstances in McAllister v Revenue and Customs Commissioners  EAT 87.
In this case, Mr McAllister had been absent from work for a total of 245 days on 23 different occasions between 2016 and his dismissal in December 2018. At the time of his dismissal, he had been off work for seven months and was unfit to work in any capacity.
Mr McAllister brough a claim, among other things, for discrimination arising from disability as above.
At the first stage, the Employment Tribunal rejected Mr McAllister’s claim for discrimination arising from disability. While it found that Mr McAllister had been dismissed for something arising from his disability (his absence from work), HMRC, the employer, was able to justify the unfavourable treatment by stating its aim of ensuring that staff were capable of demonstrating satisfactory attendance.
Mr McAllister appealed against the Employment Tribunal’s decision, but the Employment Appeal Tribunal found no error in the Employment Tribunal’s approach. Having found that Mr McAllister’s absence had negatively impacted HMRC, the Employment Tribunal carried out a balancing exercise between the discriminatory impact of the dismissal and HMRC’s aim.
What this means for employees is that there is, unfortunately, a limit to their protection from discrimination under the Equality Act.
For employers, they must be careful to ensure that their aim in dismissing any employees on long-term sick is legitimate.
Each business will operate differently, so it is important to ensure that the aim of the dismissal is specific to the needs of the business in question. Then, it is important to ensure that the decision to dismiss is proportionate to achieving that aim. This requires consideration of whether the aim might be achieved by a less discriminatory measure.
"As you can see, the context of the job role, the aim of the employer and the employee's disability are all factors that have to be taken into account on an individual basis to find the right approach for any case. At Lawson-West Solicitors we understand the uniqueness of each situation and how employment law affects it, drawing on information from other employment law cases of a similar nature and our experience of working with the Employment Tribunal."
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