The impact of disability on sickness absence

Dismissal for disability-related absence is likely to be disability discrimination unless the employer has made all reasonable adjustments to enable the employee to return to work (see Reasonable adjustments: Chapter 6, page 166).

A new category of disability discrimination law was created by section 15 of the Equality Act 2010 — “discrimination arising from disability”. To establish this kind of disability, a claimant must show:

• that they were treated unfavourably by the employer; and

• that the unfavourable treatment was for a reason connected with their disability.

There is no need to point to a non-disabled employee who is treated differently in order to succeed with this kind of claim.

The employer has two potential defences, namely:

• that the employer did not know (and could not reasonably have known) the employee was disabled; and

• that the discrimination could be objectively justified. An employer who has not made all reasonable adjustments will not be able to show this.

It is not the law that an employer can never dismiss an employee for disability-related sickness absence or can never take disability-related absence into account when deciding whether to dismiss (General Dynamics Information Technology Limited v Carranza [2014] UKEAT/0107/14/KN). The dismissal of a disabled worker for sickness absence can be both fair and non-discriminatory, as long as the employer has first made all reasonable adjustments.

In some circumstances a phased return to work can be a reasonable adjustment (London Borough of Hillingdon v Morgan [1999] UKEAT 1493/98/2705). In this case, there was evidence that a couple of months working from home might have been sufficient to enable this ME sufferer to return to work. The council had this kind of work available but failed to investigate it properly. This failure amounted to disability discrimination. Similarly, in Fareham College Corporation v Walters [2009] UKEAT/0396/08/1405, a college breached its duty to make reasonable adjustments by failing to offer a phased return to a college lecturer with fibromyalgia.

In Leeds Teaching Hospital NHS Trust v Foster [2011] UKEAT/2011/0052, it was a reasonable adjustment to place a disabled employee who was off sick with stress on the redeployment register for a job elsewhere in the Trust.

Sometimes, relocation closer to the member’s home can be a reasonable adjustment (Secretary of State for Work and Pensions (Job Centre Plus) v Jamil [2013] UKEAT 0097/13/2611).

Keeping in touch with a disabled worker during their sickness absence to make sure they are aware of changes to contract terms and the availability of benefits, such as voluntary severance or the chance to exercise share options, is likely to be a reasonable adjustment (Chawla v Hewlett Packard Limited [2015] UKEAT/0427/13/BA).

Maintaining access to work email and intranet during sickness absence can sometimes be a reasonable adjustment, depending on the nature of the business (Chawla v Hewlett Packard Limited [2015] UKEAT/0427/13/BA).

Failing to consult with disabled workers off sick during reorganisations and transfers (see Chapter 12) is likely to be disability discrimination.

The duty is to make “reasonable” adjustments. An adjustment will not be reasonable if it is not aimed at enabling an employee to remain in or return to work. There is no general duty to focus on promoting rehabilitation for its own sake (Salford NHS Trust v Smith [2011] UKEAT 0507/10/2608).

An adjustment will not be reasonable unless there is at least a prospect of a successful return to work as a result (Howorth v North Lancashire Teaching Primary Care Trust [2014] UKEAT/0294/13/2208).

There is no rule that an adjustment will not be reasonable if it involves the employer spending money (Crofts Vets v Butcher [2013] UKEAT/o430/12/LA).

The duty to make reasonable adjustments does not require an employer to pay better sick pay to a disabled than a non-disabled worker (O’Hanlon v Commissioners for HM Revenue & Customs [2007] EWCA Civ. 283). The only exception is where their return to work has been prevented by the employer’s failure to make reasonable adjustments (Nottinghamshire CC v Meikle [2004] EWCA Civ. 859).

For more general guidance on the duty to make reasonable adjustments see page 166 of Chapter 6.

Disability-related absence should be excluded when working out the total amount of an employee’s sickness absence for purposes such as redundancy selection (see Chapter 11, page 345). In Commissioner for HMRC v Whiteley [2013] UKEAT 0581/12/1005, the EAT suggests two alternative approaches for employers to adopt when calculating disability-related absence, either:

• using expert medical evidence to look at each separate period of absence to try to assess which was due to the disability and which was not; or

• taking a more broad brush approach using expert medical guidance to work out what level of disability-related absence would reasonably be expected of someone with that disability over a year, and comparing that with the employee’s sickness record.

Whichever approach is adopted, there must be full collaboration with the disabled worker and their rep, and information must be treated sensitively, respecting the employee’s right to confidentiality.

What if the employer does not know about the disability?

An employer who does not know and cannot reasonably be expected to know of a disability will not be liable for disability discrimination or for failure to make reasonable adjustments. However, an employer cannot escape liability by relying on the advice of an external third party such as an occupational health provider (Gallop v Newport City Council [2013] EWCA Civ 1583) or by ignoring the obvious (Equality and Human Rights Commission Code of Practice — see Chapter 6, page 144).