Is it discrimination to dismiss an employee on long term sick leave?

An employer discriminates against an employee if it treats the employee unfavourably because of something arising in consequence of the employee’s disability; and the employer cannot show that the treatment is justified. The treatment is justified if the employer can show that the treatment is a proportionate means of achieving a legitimate aim. Is dismissal of an employee on long term sick leave disability discrimination?

Dismissal of an employee on long term sick leave

Mr M suffered from anxiety and depression. He had various periods of absence and the employer obtained reports from Occupational Health. He was dismissed for capability. Between 2016 and his dismissal in 2018, Mr M had 245 days of absence over 23 periods, each for different reasons and periods. At the time of his dismissal, he had been continuously absent for approximately seven months. At the time the decision was taken, and at the date of his appeal against dismissal, Mr M had accepted that he was not fit to return to work in any capacity and was unable to say when he would be. He appealed against the decision to dismiss him, unsuccessfully.

Disability discrimination?

Mr M issued a claim in the Employment Tribunal, including for discrimination arising from disability. It was accepted that Mr M had a disability for the purposes of the Equality Act, which was anxiety and depression. The Tribunal found that Mr M’s dismissal was unfavourable treatment and that his disability related absences from work had led to his dismissal. The Tribunal therefore found that the dismissal was as a result of something (his absence from work) arising as a consequence of his disability.

However, the Tribunal found that the dismissal was a proportionate means of achieving a legitimate aim. The legitimate aim included ensuring that 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 effective use of resources). It balanced the discriminatory effect of the treatment against the employer’s reasons for applying those aims. This involved considering whether the aims could be achieved by less discriminatory means, such as by issuing a warning. It noted that the employer had delayed taking action on a number of occasions, did not strictly apply the attendance trigger points and sought to encourage Mr M’s attendance and return to work. It found that no lesser action, such as a warning, would have achieved the employer’s aim. The Tribunal found that the dismissal was a proportionate way of achieving a legitimate aim, and the discrimination claim failed. The Tribunal also found that the dismissal was fair.

Mr M appealed to the Employment Appeal Tribunal (EAT). However, the EAT upheld the Tribunal’s decision. The EAT found that the Tribunal was entitled to find that the employer had a legitimate aim; and that dismissal was a proportionate means of achieving that aim.

Comment

Employers considering dismissal of an employee who has been absent due to ill health on a long-term basis should give careful thought to the process they follow and whether or not it is reasonable to dismiss.

Employees have the right to claim unfair dismissal (if they have more than 2 years’ service) and will often also be protected by the Equality Act 2010. Claims for disability discrimination do not require an employee to have any particular length of service and compensation for such claims is not subject to any maximum cap.

If an employee’s disability means that they have long term absence from work and their employer dismisses them because of their absence, the dismissal will amount to discrimination arising from disability unless it is objectively justified.

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10 March 2023

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Mr J McAllister v Commissioners for HMRC

30 January 2023

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