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 justifiedand 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) 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 sickness absence. 



A sickness absence dismissal is likely to discriminate if, at the dismissal date, reasonable adjustments could still be made that stand a “good chance” of enabling a successful return to work (see Reasonable adjustments: Chapter 7, page 253).


A dismissal that breaches section 15, EA 10 will also be unfair (O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145) – see page 305: Sickness absence and unfair dismissal.


There is more detailed information about bringing claims based on section 15, EA 10 on page 252 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 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 at page 253.


There is no general duty on the employer to support an employee’s rehabilitation or recovery for its own sake. 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). 



To be reasonable, there must be at least a prospect that the adjustment will result in a successful return (Howorth v North Lancashire Teaching Primary Care Trust [2014] UKEAT/0294/13/2208). Success need not be “guaranteed”, but uncertainty is a relevant factor when deciding whether an adjustment is reasonable (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. 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. As to payment of sick pay when on a phased return, see page 298 above.


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.



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 reduction in hours – temporary or permanent. 



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 of a disability is not liable for failing to make reasonable adjustments.