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An issue which many employers will have to deal with is that of long-term sickness and/or frequent absences of certain employees.
In terms of Section 98(2) of the Employment Rights Act 1996, it is open to employers to argue that a dismissal was fair when they terminated the employment relationship by reason of an individual’s sickness absences. The employer would justify such a dismissal on grounds of capability (meaning “in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality”).
This is subject, however, to the requirements laid down in Section 98(4) of the Act as to whether the employer has acted reasonably or unreasonably and also having regard to the “equity and substantial merits of the case”.
I also stress to students and to members of the wider public, that an employer does not have a blank cheque (or an automatic right) to dismiss an employee on the basis of sickness absences. Many employers will rightly argue that they have a business to run and they must monitor sickness absence amongst employees.
A particularly problematic issue is the use by many employers of sickness absence trigger points. This is where employers designate a set number of days (usually within a 12 month period) and affected employees may find themselves being summoned to a meeting which, in reality, is a thinly disguised disciplinary action which could ultimately lead to dismissal on capability grounds.
The problem here for employers is that the use of such trigger points can be entirely arbitrary in nature. In other words, they are blunt instrument which take little or no account of individual personal circumstances.
What if the employee in question has a disability in terms of Section 6 of the Equality Act 2010? In such cases, employers would be well advised to tread extremely carefully when dealing with members of the workforce who have (or might have) the protected characteristic of disability. Additionally, a female employee who is pregnant (and is suffering from short term ill health e.g. morning sickness) may fall foul of the trigger point. Again, caution should be exercised here because a pregnant employee will be entitled to the protection of Section 18 of the Equality Act 2010.
Let’s also discuss employees who are undergoing gender reassignment and, as this involves a prolonged medical process, it may be the case that this will involve a significant amount of absences from work for the person undergoing this process. Section 16 of the Equality Act 2010 makes it very clear that an employer who treats such an individual less favourably by, perhaps, subjecting them to disciplinary action on account of these absences will be acting unlawfully.Let’s also discuss employees who are undergoing gender reassignment.
Indirect discrimination
When applying policies (practices or criteria) to the workforce, employers will have to be very much aware of straying into the perilous territory of the prohibited conduct known as indirect discrimination (Section 19: Equality Act 2010).
The Equality and Human Rights Commission provides guidance on what constitutes indirect discrimination in its Statutory Code of Practice on Employment:
Example 1
An employer has a ‘no headwear’ policy for its staff. Unless this policy can be objectively justified, this will be indirect discrimination against Sikh men who wear the turban, Muslim women who wear a headscarf and observant Jewish men who wear a skullcap as manifestations of their religion.
Example 2
Requiring a UK-based qualification, when equivalent qualifications obtained abroad would also meet the requirement for that particular level of knowledge or skill, may lead to indirect discrimination because of race, if the requirement cannot be objectively justified.
The concept of indirect discrimination in Section 19 of the Equality Act applies to all of the protected characteristics with the exception of pregnancy and maternity (which are specifically addressed elsewhere in the Act (Sections 17 and 18)).
A gung ho or insensitive approach by the employer may be very costly in the longer term as regards dealing with sickness absences (especially as an injury to feelings element could be part of an Employment Tribunal award).
A disability, for example, will affect not only the individual’s ability to perform her job, but also her ability to perform normal day-to-day activities. If this is the case, the employer will have a duty to make reasonable adjustments, in terms of Section 20 of the Equality Act 2010 to the employee’s working conditions, in order to aid her return to work.
A failure to consider reasonable adjustments or to dismiss out of hand certain adjustments may constitute disability discrimination in terms of the Act.
Furthermore, it may be extremely ill advised for employers to place employees with disabilities on some sort of attendance monitor system. This could be an example of harassment (Section 28: Equality Act) and, if the employee in question was eventually dismissed, it may represent a breach of Section 15 of the Act i.e. discrimination arising from disability.
Section 15 is an area where many employers may be caught out and, consequently, they may treat a disabled person less favourably. The issue often arises when employers monitor attendance and time-keeping of employees. It may be the case that disabled employees face greater difficulty when it comes to maintaining an acceptable level of attendance and time-keeping and are thus placed at a disadvantage in comparison with their non-disabled colleagues.
Typically, employers will impose sanctions on all employees who do not meet attendance and time-keeping targets and they will doubtless argue that the issue disability has nothing to do with the way in which they treated an individual.
An example from the Equality and Human Rights Commission’s Statutory Code on Employment makes it very clear the dangers of such a blanket approach being taken by employers (which could leave them open to legal action under Section 15):
Example
A disabled worker periodically requires a limited amount of time off work to attend medical appointments related to the disability. The employer has an attendance management policy which results in potential warnings and ultimately dismissal if the worker’s absence exceeds 20 days in any 12-month period. A combination of the worker’s time off for disability-related medical appointments and general time off for sickness results in the worker consistently exceeding the 20 day limit by a few days. The worker receives a series of warnings and is eventually dismissed. This is likely to amount to disability discrimination.
Discrimination arising as a consequence of disability
Some of the pitfalls which employers face when dealing with employees who are disabled and who have accumulated a number of sickness absences which may trigger the organisation’s intervention policy was demonstrated in a case from 2018.
DL Insurance Ltd v O’Connor Appeal No. UKEAT/0230/17/LA [2018]
O’Connor, a disabled employee, was disciplined by DL Insurance because she had accumulated 60 days sickness absence during a 12 month period (she had been given a final written warning). Her employer had fallen foul of Section 15 of the Equality Act 2010 because both the Employment Tribunal and the Employment Appeal Tribunal were of the view that disciplinary action to deal with her level of sickness was not a proportionate response given that she was a disabled person within the meaning of the Act. Her employer was aware (and had accepted previously) that O’Connor was a disabled person. Reasonable adjustments (principally flexible arrangements) had been put in place by the employer as per their duty under the Act.
Significantly, the employer had failed to involve an independent occupational health service in the matter before it made the decision to discipline O’Connor AND the manager charged with carrying out disciplinary action had not bothered to obtain a full grasp of the facts of the situation i.e. by going to discuss how what impact the absences were having on O’Connor’s colleagues. In particular, the failure by the employer to involve occupational health services in O’Connor’s case was a breach of the company’s own procedures.
In the employer’s defence, however, the Employment Appeal Tribunal did note that O’Connor had been treated sympathetically in the past and that more latitude had been given to her personally in relation to the number of sickness absences she had accrued. This was not enough and by placing O’Connor under disciplinary sanctions, the employer had subjected her to unlawful. less favourable treatment in that she would not receive contractual sick pay if she was absent from work in the future.
The Employment Appeal Tribunal placed particular emphasis on the fact that the employer had failed to explain how a written warning (with all the implications for O’Connor) would actually lead to an improvement in her attendance at work. It was noted that the employer accepted that O’Connor’s absences were genuine and unavoidable and were caused by her disability.
Conclusion
Dealing with employee sickness absence (whether of a short or long term nature) can be extremely problematic for employers. The blunt instrument approach where arbitrary trigger points are used to monitor and deal with sickness absence can store up problems for employers over the distance. Quite simply, such policies, criteria or practices (PCPs) may have a disproportionately, adverse effect on certain groups of people within the workforce e.g. individuals with disabilities. There is a very real danger for employees that they end up breaching provisions of the Equality Act 2010 and their argument that a capability dismissal was fair will fall foul on deaf ears at any subsequent Employment Tribunal hearing. Proceed with caution might be the best advice when dealing with employees who have poor sickness records.
Copyright Seán J Crossan, 21 June 2019
Seán Crossan's Scots Law 