The Equality Act 2010 provides protection against unlawful discrimination, harassment and victimisation for the protected characteristic of disability.
The core definition of ‘disability’ is a physical or mental impairment, which has a substantial and long-term adverse effect on someone’s ability to carry out normal day-to-day activities. ‘Long-term’ means that the impairment has lasted, or is likely to last, for at least 12 months. ‘Substantial’ means more than minor or trivial.
It is unlawful to treat a disabled person unfavourably, not because of his or her disability, but because of something arising from, or in consequence of, the disability, such as the need to take a period of disability-related absence. It is, however, possible to justify such treatment if it can be shown to be a proportionate means of achieving a legitimate aim. For this type of discrimination to occur, the employer must know, or reasonably be expected to know, that a person is disabled.
The claimant had worked for her employer, the respondent, since 2008 and had long-term health conditions due to her disability – as defined under the Equality Act 2010 – which was known to her employer. She was a valued employee who was capable of performing her duties when she was well enough to attend work.
Over the years, the claimant’s disability had caused not only long periods of absences but her working hours were also reduced on a number of occasions.
In 2017, she was dismissed on the basis of capability due to her ill health. Her employer felt that dismissal was the only option due to:
- the available medical evidence,
- there not being the possibility to make further adjustments,
- her low level of attendance, which her employer determined would continue on, and
- the fact that there were no alternative roles available
She appealed this decision but was unsuccessful and brought various claims to the ET, namely unfair dismissal, failure to make reasonable adjustments, and disability discrimination.
The ET dismissed the claim, permitting the respondent to introduce additional medical evidence to the court, part of which included evidence of the claimant’s medical condition post-dating her dismissal.
The ET ultimately found that the respondent had acted fairly towards the claimant and accepted their refusal of the claimant’s appeal of her dismissal.
The EAT held that the ET had erred in law, noting the following:
- The dismissal was due to capability but the claimant had been attending work prior to and throughout the dismissal and appeal processes
- The GP report was over a year old at the time of her dismissal
- There was an occupational health report to assess her fitness to work which was concluded six months earlier
- At the time of dismissal, she was under the care of a new medical team and “was optimistic about the future.”
The EAT found that this case was not about an employee being dismissed whilst on long-term sick leave but rather dismissing an employee who was feared would continue to take long periods of sick leave in future.
In concluding, the EAT held that the ET “impermissibly relied on employer medical evidence that post-dated the dismissal” due to the evidence being irrelevant to the case at hand. The legitimate aim outlined by the respondent concerned the "unpredictable nature" of the client’s absences and the requirement for cover to be provided. However, the ET had not properly engaged with the claimant’s arguments on the justification defence – that her employer had sustained her absences for many years prior to her dismissal.
This case outlines how careful organisations must be when it comes to cases of discrimination and coming to a decision to dismiss an employee, regardless of their absence track record. Organisations must not only ensure that they are following a proper procedure but also relying on the most up to date evidence (such as medical reports in this case). Organisations should also consider their employees’ medical conditions and prognoses before making the decision to dismiss them.