Disability and sickness absence

The dismissal of a disabled member of staff for disability-related absence is likely to be 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:

• 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, 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.

An agency worker whose assignment ends prematurely because of disability-related absence may be able to claim disability discrimination against both the hirer and the agency (London Borough of Camden v Pegg [2012] UKEAT/0590/11/LA).

A phased return to work can be a reasonable adjustment in this context (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.

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). In this case, Ms Smith, who suffered from chronic fatigue syndrome, was not fit to do any productive work, but she asked, with the support of her OH adviser, for some non-productive work, to support her rehabilitation, or alternatively for a career break. The EAT said that these were not reasonable adjustments because neither would have helped her get back to or remain in work.