This is a common issue that arises in businesses up and down the country, long term sickness and potential disability discrimination.
When can an employer justifiably count a period absence attributable to an employee’s disability, when managing absence? This was the topic of conversation in a recent employment tribunal case, where an employee had 66 days absence directly caused due to their ongoing disability (post-viral fatigue syndrome and fibromyalgia).
Under the employers absence management policy, such a period of time triggered a written warning being issued to her. The employee raised a grievance but with no success so issued a tribunal claim, on the basis the employer’s policy was discriminatory as it placed those suffering from a disability at a significant disadvantage. Further the employee claimed that the employer had failed to make reasonable adjustments to the policy, as per the employee’s request, to comply with their obligations under the Equality Act 2010. The employee had requested the warning be rescinded and the whole period of absence be disregarded by the employer, or, that the threshold for triggering a written warning be raised, so as to allow those suffering from a disability more time off when required, without penalty.
The tribunal deemed that the employee’s adjustments were unreasonable, and as such ruled that the employer had not breached their duty under the Equality Act 2010. However the tribunal was keen to highlight that this case was individual to its own merits, and, as only disciplinary sanctions had been issued and not termination of the employee’s employment, the employer was seen to have acted reasonably. In the judgement it eludes to the fact that if the employee in this instance had been dismissed, the decision would have been wholly different. This would therefore would have been a very costly mistake for the employer, as discrimination compensation is unlimited.
The tribunal highlighted that employers should look to adjust absence management policies if a disabled worker is likely to be absent from work more frequently than a non disabled employee, but any adjustment should be reasonable. Therefore if employers are trying to implement something like a Bradford Factor clause into their contracts of employment, to give employees a clear indication of when levels of absence will trigger disciplinary action, this must give discretion to alter or discount levels of absence caused by a disability.
If you are currently experiencing issues with employee absence, Lawgistics members can contact the legal team, to discuss what your options are with regards to actioning disciplinary sanctions to be sure the any proposed action is reasonable.