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 and proportionate. 




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, either that they did not know (and could not reasonably have known) the worker was disabled, or if they did know, that their actions (or inaction) were objectively justified as a proportionate means of achieving a legitimate aim. Many claims brought under section 15, EA 10 arise from the dismissal of disabled workers due to sickness absence. 




A sickness absence dismissal is likely to discriminate if, at the dismissal date, there were still reasonable adjustments that could have been made that stood a good chance of enabling a successful return to work (see Chapter 7, page 233).
A dismissal that breaches section 15, EA 10 will normally also be unfair (O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145).



There is more information about claims based on section 15, EA 10 on page 230, 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 is reasonable, a disabled worker has the same access to everything involved in doing and keeping a job as a non-disabled person. The duty applies to all aspects of sickness absence procedures (Griffiths v The Secretary of State for Work and Pensions [2015] EWCA Civ 1265).
There is general information about the duty to make reasonable adjustments in Chapter 7: Discrimination, page 231. This section focuses only on using the duty when representing members at risk of a sickness absence dismissal. 



There is no general duty on an employer to support an employee’s rehabilitation or recovery for its own sake. Instead, only adjustments that aim to enable the employee to remain or return to work are “reasonable” (Salford NHS Trust v Smith [2011] UKEAT 0507/10/2608). For this reason, a career break cannot be a reasonable adjustment. Neither can helping a worker who is off sick to access an ill-health retirement scheme instead of dismissal (Mylott v Tameside Hospital NHS Foundation Trust [2010] UKEAT/0399/10/DM). 




For an adjustment to be reasonable, there must be at least a prospect that it 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 too much uncertainty can make a requested adjustment unreasonable (Poulley v First Group PLC [2014] EWCA Civ 1153). 




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, resulting in 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. As to payment of sick pay when on a phased return, see page 271.



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


Offering relocation to an office closer to 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 offering a temporary or permanent cut in hours. 




There is no rule that an adjustment will not be reasonable if it involves the employer spending money (Crofts Vets v Butcher [2013] UKEAT/0430/12/LA, G4S Cash Solutions (UK) Limited v Powell [2016] EWCA Civ 983). However, excessive cost can be a justification for refusing a request. 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 that the worker has a condition amounting to a disability will not be liable for failing to make reasonable adjustments.