Disability and sickness absence

The dismissal of a disabled member of staff for disability-related absences could amount to disability discrimination unless the employer has first made all reasonable adjustments to enable the employee to return to work.

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:

(a) that they were treated unfavourably by the employer; and

(b) 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 claim.

The employer has two potential defences, namely that:

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

(b) The discrimination could be objectively justified looking at the surrounding facts. An employer who has not made all reasonable adjustments will not be able to show that the discrimination can be objectively justified.

The dismissal of a disabled employee after a period of disability-related sickness absence could be discrimination arising from disability, unless the employer can demonstrate, by reference to all the surrounding circumstances, including any reasonable adjustments, that the dismissal is justified. (See Chapter 6: Disability discrimination).