Sickness absence dismissals and disability discrimination 


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. The dismissal of a disabled worker for sickness absence can be fair and non-discriminatory, but only if the employer can show that the dismissal is objectively justified as a proportionate response. 


Under section 15 of the Equality Act 2010 (“discrimination arising from disability” ), it is unlawful to treat a disabled worker unfavourably for a reason connected with their disability. However, the employer has a defence if they can show, firstly, that they did not know (and could not reasonably have known) the worker was disabled and secondly, that their actions (or inaction) can be objectively justified as a proportionate means of achieving a legitimate aim. Many of the claims brought under section 15, EA 10 arise out of the dismissal of disabled workers due to their sickness absence. 


A sickness absence dismissal is likely to be discriminatory if, at the dismissal date, there are still reasonable adjustments that could have enabled a successful return to work (see Reasonable adjustments: Chapter 7, page 223). However, the employer is only under a continuing duty to make adjustments if there is a real prospect that making the adjustment will enable the employee to return to work. Otherwise the adjustment will not be “reasonable”. For example:


There is more detailed information about bringing claims based on section 15, EA 10 on page 222 of Chapter 7: Discrimination. 


The duty to make reasonable adjustments is an important source of protection for disabled workers (section 20, EA 10). It is a practical duty that aims to make sure that so far as reasonable, a disabled worker has the same access to everything involved in doing and keeping a job as a non-disabled person. 


The size of the employer, the practicality of the proposed step, the cost of the adjustment, the extent of the employer’s resources, and whether the adjustment will be effective in alleviating the worker’s disadvantage, are all relevant factors when considering whether a proposed adjustment is reasonable. 


In the context of sickness absence, the duty requires the employer to look at what reasonable adjustments can be made in the workplace, including all kinds of work practices and rules and the physical environment at work, as well as the supply of auxiliary aids, to enable a disabled worker to return to and remain in work.


There is no general duty to focus on promoting rehabilitation for its own sake. Only adjustments aimed at enabling the employee to remain or return to work will be reasonable:


To be reasonable, there must be at least a prospect that the adjustment will result in a successful return to work (Howorth v North Lancashire Teaching Primary Care Trust [2014] UKEAT/0294/13/2208). Success need not be “guaranteed” , but the extent of the uncertainty must be weighed up when deciding whether an adjustment is reasonable (Poulley v First Group PLC [2014] EWCA Civ 1153). 


A career break cannot be a reasonable adjustment, because it is not aimed at getting someone back to work (Salford above). For the same reason, helping a worker who is off sick to access an ill-health retirement scheme instead of dismissal is not a reasonable adjustment (Mylott v Tameside Hospital NHS Foundation Trust [2010] UKEAT/0399/10/DM). 


A phased return or a period working from home 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 suffering from fibromyalgia.


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


Sometimes, offering relocation to an office 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). So can allowing a disabled worker to reduce their hours – temporarily or permanently. 


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), but excessive cost can be one reason for refusing a request, in both the public and the private sector. Assistance with costs may be available through the government’s Access to Work scheme. 


An employer who does not know and cannot reasonably be expected to know of a disability will not be liable for failing to make reasonable adjustments. For more information about the importance of the employer’s knowledge of the disability, see Chapter 7, page 220.