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Sickness Absence Dismissals - Considerations for Employers

on Friday, 16 July 2021.

In the recent case of Brightman v TIAA Limited, employee Mrs Brightman was dismissed on the basis of evidence that she was likely to have further unpredictable periods of absence in future.

The Employment Appeal Tribunal (EAT) noted a number of points in its decision which are a helpful reminder for employers dismissing in these circumstances.

Long and Unpredictable Absence

Mrs Brightman, had a number of long-term health conditions, including a blood clotting problem, severe brittle asthma and a slipped disc that required crutches for support. It was accepted that she was disabled for the purposes of the Equality Act 2010.

Mrs Brightman had always had absences from work as a result of her conditions, which had been accommodated by her employer, TIAA Ltd. Her work had been adjusted to allow for periods where she might be absent with short notice, for example, by she was not given time pressured work, and other colleagues were required to cover her work from time to time.

However, in 2015 Mrs Brightman was absent from work for much longer than in the previous year, which resulted in her employer requesting a report from her GP. Mrs Brightman’s GP report stated that Mrs Brightman was still fit for her role, although her deteriorating respiratory condition would likely lead to longer exacerbations and therefore longer periods of sick leave. However, Mrs Brightman's GP saw "no reason why she could not be able to manage her work as she had done for many years." In 2016, Mrs Brightman continued to have further absences and was referred to occupational health. The report stated that further absences would continue to be likely, and "the only recommendation was further flexibility for tolerating sickness absence."

Mrs Brightman continued to have further absences due to one of her other conditions and following two meetings with her employer, was dismissed by reason of capability on the basis of the available medical evidence. It was decided that no further adjustments were possible, in addition to her unacceptable levels of attendance, which her employer concluded was likely to continue. The employer also noted the lack of alternative roles.

Following an unsuccessful appeal against this decision, Mrs Brightman brought various claims to the employment tribunal: unfair dismissal, direct disability discrimination, discrimination because of something arising in consequence of disability and failure to make reasonable adjustments. The tribunal dismissed her claims and she appealed to the EAT.

What Did the EAT Note?

In relation to Mrs Brightman's discrimination arising from disability claim, the 'something arising', was her absence record. Although it was noted that TIAA Ltd's legitimate aim concerned the 'unpredictable nature' of her absence and the need for other employees to provide cover, the EAT found that the employment tribunal had not adequately engaged with Mrs Brightman's arguments on justification, especially because her absence levels had been sustained for years. Furthermore, TIAA Ltd had not provided any evidence to support their alleged financial difficulty caused by continuing to employ Mrs Brightman as it had been.

The EAT concluded that the tribunal had relied on medical evidence that post-dated the dismissal and therefore was irrelevant to the liability hearing. Not only had Mrs Brightman attended work throughout the dismissal and appeal processes, her GP report was over a year old and the occupational health report was six months old. Since that point, she had received a new 'intra-venous central line', was being cared for by a new medical team and was 'optimistic for the future'.

The case was not about dismissal of an employee who had a long-term illness, but instead was about dismissing a working employee because of the risk that she would have further periods of sickness absence in the future.

Mrs Brightman's claims were remitted to be heard by a fresh employment tribunal.

What Can Employers Learn from This Case?

  • Even if an employee has multiple, and prolonged periods of absence, it is essential to base any decisions around termination on up-to-date medical evidence.
  • In this case, the EAT noted that the employer had not submitted any evidence to support its assertion of financial difficulty as a result of continuing to employ Mrs Brightman as it had been. It is important to ensure that any objective justification arguments can be supported by evidence and stand up to scrutiny.

If you have any further questions relating to dismissals and disability discrimination in general, please contact Ellie Boyd in our Employment Law team on 07393 148143, or please complete the form below.

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