Ill-health absences and disability

In the recently decided case of General Dynamics Information Technology v Carranza the EAT considered a disabled employee's claims of failure to make reasonable adjustments in relation to a final written warning and unfair dismissal for sickness absence. Anne Palmer reports.

The background

An employer has a duty to make reasonable adjustments where it knows (or ought reasonably to know) that a person has a disability and there is a provision, criterion or practice (PCP) which places the disabled person at a substantial disadvantage compared to those who are not disabled. Failure to make a reasonable adjustment amounts to discrimination. The duty is set out in section 20(3) of the Equality Act 2010 (Eq Act 2010), which provides:

"Where A's provision, criterion or practice (PCP) puts a disabled person at a substantial disadvantage in comparison with those who are not disabled, A must take such steps as it is reasonable to have to take to avoid the disadvantage."

The facts

Mr Carranza was employed by the London Borough of Lambeth before his employment transferred under TUPE on 1 December 2011 to General Dynamics Information Technology Ltd.

General Dynamics Information Technology Ltd accepted that Mr Carranza was disabled within the meaning of the Equality Act 2010. He suffered from abdominal adhesions as a result of an operation during childhood, to remove a ruptured appendix. Lambeth had made adjustments for his disability, including extra breaks and time off for appointments but nevertheless, he had very substantial periods off work.

Lambeth's sickness policy had a trigger point for formal action in the event of four periods of sickness or a total or 10 days' sickness in a rolling 12 month period. Disability-related sickness was disregarded in assessing the trigger (although it could be taken into account in deciding what action to take once the procedure was triggered). Although most of his absences were related to his disability, Mr Carranza had enough sickness absences for other reasons (including a sprained ankle, a viral illness, influenza and influenza again) to trigger the procedure. He received a warning, and then, in September 2011 (shortly before the TUPE transfer) a final written warning with details of the management's reasoning.

Following that warning, Mr Carranza had two further relatively short absences relating to his disability (which did not prompt any action by the employer) before then being absent for 3 months owing to an unrelated shoulder injury. This once again started the formal procedure and a hearing. Although the employer took into account advice from occupational health, Mr Carranza was dismissed following the hearing and he appealed. His appeal was unsuccessful and he subsequently brought claims of disability discrimination and unfair dismissal.

An employment tribunal found by a majority that the employer had failed to make reasonable adjustments. It identified the relevant PCP as a general requirement for consistent attendance at work, which put Mr Carranza at a substantial disadvantage compared to non-disabled persons because he was dismissed due to past consideration of disability-related attendances. The tribunal unanimously held that his dismissal had been procedurally unfair because the employer did not review the final written warning; the tribunal decided that a fair employer would have looked at the final written warning in context. The employer appealed against the findings of disability discrimination and unfair dismissal.

The decision

The Employment Appeal Tribunal (EAT) overturned the decision and allowed the appeal on both points.

• The EAT reasoned that it would be "remarkable and… regrettable" if an employer, by showing leniency, to a disabled person thereby became required by law to disregard all disability-related absences, whatever the impact on the business.
• The EAT determined that the employment tribunal had also been wrong on the unfair dismissal issue - guidance in a 2013 Court of Appeal case called Davies v Sandwell MBC  established that an employer is not required to re-open a final written warning save in limited circumstances.
• Here the employer had been entitled to dismiss because of
• • the final written warning,
  • the substantial post-warning absence and
  • the occupational health advice that the absence would continue.

As a result, the findings of disability discrimination and unfair dismissal were set aside.

What does this mean for me?

This case is consistent with a string of recent cases where the EAT have taken a narrow view of the scope of reasonable adjustments claims in relation to sickness absence procedures and dismissals.

As a result of this latest judgment, two points to consider are that:

1. it will be easier for a claimant to show disadvantage based on a PCP of "consistent attendance at work", as in this case, rather than a PCP based on the application of the employer's absence management procedure.
2. Second, the EAT appears to be trying to encourage less use of reasonable adjustments claims and greater use of discrimination arising from disability and indirect disability discrimination claims.

The EAT suggested that the Equality Act 2010 has done away with a fundamental weakness in the law, which had previously made it very difficult for claimants to bring claims of disability-related discrimination (because of the controversial decision in Lewisham Council v Malcolm, in 2008). As the Equality Act has remedied the gap in disability protection caused by the decision in Malcolm, disability discrimination claims should now be shifting away from reasonable adjustments; the basis on which cases involving dismissal for poor attendance are brought may now be better analysed as claims for discrimination arising from disability – for which, a justification defence is available. The justification will focus on the employer's need for employees to attend work consistently. By extension, this is what you will need to have in mind when considering applying sanctions against disabled employees for poor attendance (whether under a disciplinary or absence management policy / procedure).