Disability Discrimination - Two Recent Cases
Two recent Employment Appeal Tribunal (EAT) cases have cast a spotlight on 'discrimination arising from disability' claims.
What Is a Claim of Discrimination Arising from Disability?
Under section 15 of the Equality Act 2010, a person will discriminate against a disabled person if they treat the disabled person unfavourably because of something arising in consequence of their disability. However, a claim will not succeed if:
- the treatment can be objectively justified
- the person did not know, and could not reasonably have been expected to know, about the disability
What Happened in the Two EAT Claims?
Both claims concerned disabled employees who had been dismissed following lengthy absences from work. In the case of McAllister v Revenue and Customs Commissioners, Mr McAllister's dismissal was held not to be discrimination arising from a disability. This was because the dismissal was the employer's proportionate means of achieving the legitimate aim of maintaining good staff attendance.
Mr McAllister also brought a claim in relation to the calculation of his 'Civil Service Compensation Scheme' payment. This is a payment made to civil service employees who lose their jobs for reasons beyond their control. In Mr McAllister's case his payment had been reduced by 50% because of his disruptive conduct during the formal process. The EAT held that this was also not discrimination arising from disability. As the payment had been made to Mr McAllister because of his treatment due to disability-related absence, this was more favourable treatment. The fact there had been a reduction to the maximum permitted payment did not undermine this fact.
In the claim of Preston v E.on Energy Solutions Ltd, Mr Preston was also dismissed following lengthy absence, some of which was disability related. However, his treatment was not because of his sickness absence but because of his refusal to engage with measures put in place to support him in his return to work. The dismissal was proportionate given the amount of support the employer had offered Mr Preston before terminating his employment.
What Can Employers Learn from these Decisions?
These decisions both demonstrate the reasonable steps employers can take to terminate employment in circumstances where there has been lengthy sickness absence. Where an employer has put in place significant support to help the individual return to or remain at work, and/or the continued absence is having a wider impact on the organisation, then it may be possible to objectively justify the termination of employment.