A recent case from the Employment Appeal Tribunal provides some guidance in this area for employers. The EAT held that the dismissal of a disabled employee with a poor attendance record (100 days in an 8 month period) was fair, and that it would not have been a reasonable adjustment, for the purposes of the Equality Act 2010, to exempt the employee from the employer's absence management policy.
The case, Jennings v Barts and The London NHS Trust, concerned a Mr Jennings who worked as an IT support engineer for the NHS Trust. He had a long history of both intermittent and long-term sickness absence, initially attributable to a back injury, then laterally to stress and anxiety issues. The NHS Trust actively followed its absence management procedures and arranged for hearings to take place due to absence levels, many of which were postponed after Mr Jennings failed to attend. A number of hearings were eventually held which ultimately cumulated in Mr Jennings' dismissal.
Mr Jennings raised a claim to the Employment Tribunal on the basis, among other things, that he had been subject to disability discrimination on the grounds of his employer's failure to make reasonable adjustments. The failure to make reasonable adjustments related to the application of the sickness management policy, which would have a greater impact on disabled workers who were more likely to take days off sick. A reasonable adjustment, Mr Jennings argued, would have been not applying the sickness absence procedure to a disabled employee.
The Employment Tribunal held that it would not be a reasonable adjustment to require the employer to exclude Mr Jennings from its short term absence policy. The Tribunal noted that the employer would be required to operate a new sickness absence policy that applied uniquely to Mr Jennings. Furthermore, it made note of Mr Jennings lack of engagement in the sickness management process. Mr Jennings had failed to complete a stress questionnaire and had also failed to engage in attempts to return to work. The Tribunal also noted the problems Mr Jennings was causing his employer, stating that there would be "clear operational problems" in allowing the absence to continue. In light of this lack of engagement, and the difficulties Mr Jennings absence was causing his department, the Tribunal found it was not reasonable for the employer to exclude Mr Jennings from its sickness management procedures.
Mr Jennings appealed this decision to the Employment Appeal Tribunal. However, the EAT upheld the Tribunal's original decision and reasoning.
The decision in Jennings makes clear that employers will be justified in taking action against an employee who has excessive absences even if these are due to a disability. However, this is still an area where caution is required and, depending on the circumstances, it may still be appropriate to make some adjustment to the terms of the policy by, for example, increasing the absence threshold before formal meetings are held and/or increasing the number of warnings before any dismissal takes effect. Employers should also consider whether there are any other adjustments that can be made to assist the employee with reducing the number of absences.
This case can be considered alongside the decision in RBS v Ashton, which held that a reasonable adjustment did not include extending the length of time that a disabled employee should be paid sick pay.