Absence Management of Disabled Employees

Under the provisions of the Equality Act 2010 there is a duty on an employer to make reasonable adjustments where a provision, criterion or practice (PCP) applied by the employer, or a physical feature of the workplace, puts a disabled person at a substantial disadvantage in comparison with people who are not disabled.

In the case of Jennings v Barts and The London NHS Trust, Mr Jennings, a disabled employee, was dismissed on the grounds of poor attendance due to ill health.  Throughout his employment he had frequent and intermittent ill-health absences, some of which were as a result of his disability which was as a result of a mental rather than physical impairment.

The Trust had a short-term absence policy which it applied rigorously to all staff and which it applied to Mr Jennings.  As a result of the application of the policy, and following a series of meetings which were arranged but postponed due to Mr Jennings’ medical condition, or held in his absence when he failed to attend, Mr Jennings  received a first written warning.  The Trust then commenced the long-term absence procedure as Mr Jennings had gone off sick once the short-term policy had been implemented, citing that the implementation of the policy had made him even more stressed.

Although an Occupational Health assessment in January 2008  said that it would be possible that Mr Jennings would be ready for a phased return to work in March 2008, the Trust completed the long-term absence procedure and at a final stage meeting Mr Jennings’ manager formed the view that his continued absence was unfair to his colleagues, that the department was busy and that there was a real possibility that Mr Jennings might not in fact return to work as no firm date had been set.  Mr Jennings was dismissed.

Mr Jennings issued a tribunal claim for unfair dismissal and failure to make reasonable adjustments under the Disability Discrimination Act 1995 which was the relevant piece of legislation at the time.

The Tribunal found that, in this case, the PCP in question was the Trust’s short-term absence policy and specifically that the Trust did not permit unplanned intermittent absences without sanctions which would ultimately lead to dismissal.  Mr Jennings suggested that the Trust should have exempted him from this policy because of his disability.  The Tribunal felt that such exemption would not have been a reasonable adjustment.   The EAT agreed.

This is an important case for employers as it illustrates very clearly that the duty to make reasonable adjustments is simply that.  Whether an adjustment is reasonable or not will be very fact driven from case to case.  What may be a reasonable adjustment for a large employer of, say, 1000 employees or more may not be reasonable for an employer with only a handful of staff and a limited budget.  However, the findings in this case would seem to confirm that if an employer has a short-term sickness absence policy which is, in itself, fair and which it applies to all staff, then it is unlikely to be either unfair or discriminatory to dismiss someone at the end of the application of the policy even if the reason for the absences was a disability.   As a result, employers are advised to put such a policy in place and to manage all staff absences in line with the policy.  The important thing to note, however, is that if an employer ever deviates from such a policy for one or more members of staff who are NOT disabled then a disabled person may well be able to bring a claim of direct disability discrimination if it is, nevertheless, adhered to for him.  The key to the NHS’s defence was (a) that the policy was, in itself, reasonable and (b) it was applied universally and without exception.

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About Belinda Lester
I am the managing director and founder of Lionshead Law a specialist employment law and HR consultancy company.

One Response to Absence Management of Disabled Employees

  1. Danelle says:

    Thank you! This a great web site.

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