The Employment Appeal Tribunal has upheld a ruling that the dismissal of a disabled employee who had been off work for over 7 months was lawful and not discriminatory.
Under the Equality Act 2010 employers are prohibited from discriminating against employees for a reason arising from their disability. However such a claim can be defended where the employer’s actions constituted a proportionate means of achieving a legitimate aim.
The EAT has confirmed in McAllister v Revenue and Customers Commissioners that the employer’s requirement that staff demonstrate that they are capable of satisfactory attendance and have a good standard of attendance, was a recognised legitimate aim. In this case the employee had been off work for a total of 245 days on 23 different occasions. The employer decided that his absences were impacting on productivity and staff morale and, having exhausted all reasonable adjustments to facilitate his return, dismissed him. The dismissal was held to be fair and non-discriminatory.
This case is extremely useful for employers who have staff on long term sick. Although employees who are genuinely sick deserve compassion and understanding, this case helps to show that the law recognises that employers employ staff to do a job that needs to be done. Long term or repetitive absences significantly impact on the ability of businesses to operate and can also have a negative impact upon other staff. Employers are therefore entitled to reach a point where they say ‘enough is enough’ and dismiss the employee. This case supports employers who reach that stage.
If you are a business which is struggling with staff absences or have employees on long term sick please do speak with our Employment Team on on 0345 646 0406 or fill in our online enquiry form to discuss what options might be available to you.