Dealing with disability-related sickness absence

Legislation protecting against disability discrimination celebrates its 20^th anniversary this year.

Originally contained in the Disability Discrimination Act 1995, disability discrimination legislation can now be found in the Equality Act 2010.

Disability legislation has presented employers with some difficult challenges over the years, perhaps none more so than how fairly to deal with an employee who is incurring unsustainable levels of disability-related sickness absence. The key legal considerations and case law are set out below.

'Unsustainable' absence levels

Almost all employees will periodically incur sickness absences. Employers understand this and are usually willing to tolerate a reasonable level of sickness absence.

However, if an employee's level of sickness absence becomes unsustainably high (either in terms of its frequency and/or its duration), then employment law recognises that a point will be reached when an employer is entitled to say that 'enough is enough' and dismiss that employee.

In such circumstances, an employer must first have due regard for the employee's potential rights. In particular:

• Employees with at least two years' continuous employment with the same employer are entitled to the statutory right not to be unfairly dismissed; and
• In addition, employees whose sickness absence is disability-related, either in full or in part, are entitled to protection against disability discrimination under the Equality Act 2010, irrespective of their length of service.

Both forms of protection impose certain practical obligations on an employer, many of which overlap.

Unfair dismissal

In order to fairly dismiss an employee due to an unsustainable level of sickness absence, an employer must ensure that:

• Sickness absence is the only or principal reason for the employee's dismissal
• Management adopts a fair procedure before arriving at the decision to dismiss; and
• That it's reasonable to dismiss, given all the circumstances.

Challenges to the fairness of a sickness absence dismissal most often focus on the procedure which was adopted by the employer before deciding to dismiss, and case law has established that a fair procedure will typically include the following elements:

• Ongoing consultation between the employer and the employee throughout their period(s) of sickness absence and up to and including the consideration of their dismissal. Such consultation will usually include:
  • Consideration of the current medical evidence and the employee's prognosis, including the employee's own opinion of their medical condition (e.g. have there been any changes in circumstance since the most recent expert medical evidence was obtained?)
  • Consideration of any steps that can be taken to enable the employee to return to work and/or avoid further sickness absence, including the possible implementation of reasonable adjustments. Irrespective of whether the employee is in fact disabled, if an adjustment is reasonable and would help improve the employee's attendance, it would make sense to implement it
  • Where appropriate and available, the consideration of alternative duties; and
  • Suitable periodic warnings from management about the potential consequences, including the possibility of dismissal, should the employee's level of sickness absence remain unsustainable.
• The employer obtaining up-to-date medical evidence about the employee's current condition and prognosis at appropriate intervals, including whether the employee should be regarded as disabled (such evidence might, depending upon the circumstances, be obtained from the employee's GP, the employer's Occupational Health adviser and/or a relevant Specialist)
• Where dismissal becomes a possibility, the proactive and timely consideration by the employer of alternatives to dismissal, e.g. altering existing work patterns or transferring an employee to a suitable alternative role; and
• Where appropriate, the consideration by the employer of any ill-health retirement entitlement or other relevant benefits.

Disability discrimination

Amongst other matters, disability discrimination legislation makes it unlawful for an employer to discriminate against a disabled employee by either dismissing them or else subjecting the employee to any other detriment.

As a consequence, where an employee is disabled (as defined in the Equality Act) and where some or all of his or her sickness absence is disability-related, then that employee will be entitled to various additional forms of protection, irrespective of their length of service.

Of these, three are likely to be relevant when an employer is managing sickness absence:

• Discrimination arising from disability: it is unlawful for an employer to unjustifiably treat a disabled employee less favourably because of something arising in consequence of his or her disability. For example, an employer would need to be able to justify giving a formal warning or else dismissing an employee by reason of his/her disability-related sickness absence;
• Indirect disability discrimination: where an employer applies a policy, procedure or practice to all of its staff (e.g. a requirement that employees achieve minimum standards of attendance), and where that policy, procedure or practice disadvantages a group of employees who share a particular disability (e.g. because this disability results in higher levels of sickness absence than normal, which in turn makes it harder for a member of that group to achieve the required attendance standards), then giving a warning or dismissing a disabled employee under that policy will amount to indirect disability discrimination if:
• Some or all of the relevant absences are disability-related; and
• The employer cannot justify giving the warning or dismissing the employee;
• A failure to make reasonable adjustments: an employer will discriminate against a disabled employee if it fails to comply with the duty to make reasonable adjustments. This duty comprises three elements, namely:
• Where a provision, criterion or practice ('PCP') applied by an employer puts a disabled employee at a substantial (i.e. more than minor or trivial) disadvantage by comparison with non-disabled colleagues then the employer must take reasonable steps to avoid the disadvantage;
• Where a physical feature of an employer's premises puts a disabled employee at a substantial disadvantage by comparison with non-disabled colleagues then the employer must take reasonable steps to avoid the disadvantage; and
• An employer must take reasonable steps to provide an employee with an auxiliary aid or service where the employee would otherwise be put at a substantial disadvantage in comparison with non-disabled colleagues (e.g. an employer might have to provide specialist software to help an employee who develops a visual impairment).

As explained below, various examples of reasonable adjustments are set out in a Code of Practice published in support of the Equality Act, some of which are particularly relevant to the management of sickness absence.

Failure to make reasonable adjustments: impact on fairness

In reality, the duty to make reasonable adjustments is fundamental to the legal protection afforded to a disabled employee who is at risk of being warned or dismissed due to an unsustainable level of sickness absence which includes disability-related absences.

An employer cannot successfully run a justification argument in respect of an allegation of discrimination arising from disability or indirect disability discrimination if it has failed to implement a reasonable adjustment which would have avoided the need to warn or dismiss a disabled employee by helping to reduce their disability-related sickness absence to an acceptable level.

In addition, a failure to make a reasonable adjustment is likely to undermine the fairness of any disability-related dismissal, if such an adjustment could have avoided this.

Reasonable adjustments and absence management policies

Recent case law has emphasised that the duty to make reasonable adjustments does indeed apply to an employer's sick absence management policy: in Griffiths v The Secretary of State for Work and Pensions, the Court of Appeal held that an absence management policy, under which all employees, both disabled and non-disabled, were treated equally, was capable of placing a disabled employee at a substantial disadvantage and therefore the duty to make reasonable adjustments was engaged.

The Court of Appeal held that the relevant provision, criterion of practice ('PCP') was the requirement to maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions. By formulating the PCP in this way, it became clear that this was a requirement that would substantially disadvantage those disabled employees whose disability increases the likelihood of absence from work.

The Griffiths case was also interesting in that:

• The Court of Appeal emphasised that the duty to make reasonable adjustments goes beyond equal treatment and requires employers to take positive steps. Thus, an employer should have regard to the duty to make reasonable adjustments when issuing disciplinary warnings for sickness absence: this didn't mean that such warnings should never be issued, but rather that an employer should consider whether it would be reasonable not to issue them or to vary them in some way (e.g. by adopting more lenient 'trigger' points)
• However, in this particular case, the Court of Appeal rejected the Claimant's contention that the employer had failed to make reasonable adjustments by not extending the trigger point at which disciplinary action could be taken under its attendance management policy and by failing to disregard periods of sickness absence. Instead, the Court of Appeal held that, on the evidence, the Employment Tribunal which originally heard the claim had been entitled to conclude that neither of these steps was reasonable for the employer to take. In relation to the extension of the trigger point for future periods of absence, there was no obvious period by which the point should be extended. Moreover, if future absences were likely to be long, a relatively short extension of the trigger point would be unlikely to remove the disadvantage. That said, the Court of Appeal noted that in different circumstances where the periods of absence were short, it may be that such an adjustment could be reasonable.

Examples of reasonable adjustments

Whilst the Equality Act does not provide examples of reasonable adjustments, these can be found in the Code of Practice published in support of the Act. A number of these examples are particularly relevant in the context of sick absence management, including:

• Allocating some of the disabled person's duties to a colleague (e.g. where a job involves occasionally going on to the open roof of a building, the employer might sensibly transfer this work away from an employee whose disability involves severe vertigo)
• Transferring the disabled person to fill an existing vacancy (e.g. where the onset of an underlying medical condition makes it unsafe for an employee to continue in a driving duty and, instead, he is transferred to an indoor duty)
• Altering the disabled person's hours of working or training (e.g. allowing a disabled person to work flexible hours to enable him to have additional breaks to overcome fatigue arising from his disability, or permitting part-time working or different working hours to avoid the need to travel in the rush hour)
• Assigning the disabled person to a different place of work or training, or arranging home working
• Allowing the disabled person to be absent during working or training hours for rehabilitation, assessment or treatment
• Giving, or arranging for, training or mentoring (e.g. to enable an employee to transfer to a new job which is better suited to his or her back problem)
• Acquiring or modifying equipment (e.g. providing special equipment, such as an adapted keyboard for someone with worsening arthritis); or
• Allowing a disabled employee to take a period of disability leave (e.g. an employee who has cancer needs to undergo treatment and rehabilitation, and his employer allows a period of disability leave and permits him to return to his job at the end of this period)

Of the above examples, transferring the disabled person to fill an existing vacancy has previously generated some important case law and continues to do so:

• In the 2004 case of Archibald v Fife Council, the House of Lords stated that reasonable adjustments include allowing disabled persons to: “…trump [fellow] applicants for new jobs, even if a disabled employee is not the best candidate, provided that the disabled employee is suitable to do that work…”. Given that reasonable adjustments include re-training, there is, therefore, an argument that if the disabled person would be a suitable candidate with reasonable training, then that person should still trump other candidates and be provided with the training
• The principle set out in Archibald appears to have been followed in the 2015 case of Waddingham v NHS Business Services Authority, in which an Employment Tribunal upheld a claim for failure to make reasonable adjustments which had been brought by a disabled NHS employee who had failed to achieve the required score in a competitive interview for an internal post. The employee, whose existing position was at risk of redundancy, indicated that he wanted to proceed with the interview, despite having been signed off sick while he was receiving cancer treatment. The Tribunal found that:
• While it was necessary to have some form of assessment, the employer should have carried this out on the basis of existing data about his performance, including appraisals from previous posts
• However, it was not necessary to lower the pass mark to accommodate the employee's impaired performance at interview; an
• The failure to appoint the employee to the role also amounted to discrimination arising from his disability. He was unsuccessful because of his poor performance at interview, which had been adversely affected by his condition. Rejecting a 'justification' argument, the tribunal doubted whether there could be a 'legitimate aim' of selecting the best candidate for the job in a context where a disabled candidate can lawfully be given more favourable treatment than a non-disabled candidate. A more appropriate aim may be to appoint a person who could perform to the required standard.
• However, the principle established by the Archibald case has its limitations. In Wade v Sheffield Hallam University, the Employment Appeal Tribunal held that it would not have been a reasonable adjustment for the employer to waive its requirement for a disabled candidate to undergo a competitive interview process and meet the core competencies of the job. It could not be a reasonable adjustment for the employer to appoint someone to a role where the person failed to meet the essential requirements of the job
• Whilst the Code of Practice refers only to transferring a disabled employee to an "existing vacancy", it does appear that — in certain circumstances — an employer might be required to redeploy a disabled employee even where no vacancy currently exists.
• Creating a new role: in Southampton City College v Randall, the Employment Appeal Tribunal upheld an Employment Tribunal's decision that it would have been reasonable for an employer to devise a new job that took into account the employee's disability. As a matter of law, the creation of a new post is not precluded from being a reasonable adjustment. However, whether such an obligation arises depends on the facts. In this case, the employer was undertaking a reorganisation and accepted that it had "a blank sheet of paper" so far as job specifications were concerned
• Swapping with another employee: In Chief Constable of South Yorkshire Police v Jelic, the Employment Appeal Tribunal upheld an Employment Tribunal's decision that:
  
  
  • Swapping the Claimant's role with an existing role that was already filled by another police officer was capable of being a reasonable adjustment. Whilst the Tribunal recognised that the current post holder would have to be consulted before being transferred, it found that he could have been ordered to move whether he liked it or not, since the police force was a 'disciplined service'
  • Swapping jobs was not equivalent to 'bumping' for redundancy purposes, because the person being transferred was not losing his job but was instead being given another role. It was also not the same as creating a role, as the post already existed
  • The examples of reasonable adjustments in the legislation were illustrative but not exhaustive, and therefore swapping post holders was not prohibited by law.

It therefore now appears that swapping people between jobs to accommodate disabled employees might constitute a reasonable adjustment in certain circumstances.

Assuming that an employer has a contractual right to transfer staff between roles, it should arguably consider re-deploying disabled employees into both vacant and filled posts, although an employer is not normally under a duty to create a new post to accommodate a disabled employee. However, it should be borne in mind that the EAT made it very clear that the 'special nature of the police service was an important part of the factual matrix in this case.'

On the facts, swapping the disabled employee's role with another employee's job was a viable reasonable adjustment because police staff had to obey orders. It might therefore be argued that in less regimented organisations swapping employees' roles may not be a realistic option.

That said:

• If the employer has an express contractual power to move staff between roles then a Tribunal might well query why it didn't exercise this power, having first had due regard to the circumstances of the current incumbent; and
• It is always worth asking colleagues if they would be prepared to swap roles to accommodate a disabled colleague, and it would be prudent for employers to provide documentary evidence to substantiate that they have considered this adjustment.

Consultation with the non-disabled employee occupying the relevant post will form a necessary part of this process.

In addition to the various legal obligations owed towards disabled employees, management needs to bear in mind that they also owe a duty of care towards all their staff and should treat them fairly and with dignity. Thus, there should be proper consultation with any non-disabled colleague before management decides to transfer them to a suitable alternative role, so as to free up their current role for the disabled employee.

If the non-disabled employee puts forward good reasons why they should not be transferred out of their current role (e.g. health or domestic-related) then these reasons must be properly considered by management before deciding upon a particular course of action.

It's been a busy 20 years for disability discrimination law and recent Tribunal statistics suggest that the challenges arising from this legislation show little sign of abating.

That said, arguably the most important lesson from the last 20 years has been that employers who embrace the spirit of the disability legislation, rather than focussing on minimal compliance, are likely to find the legislation much less problematic and, hopefully, will come to appreciate why many commentators regard disability law as one of the most commercially sensible pieces of legislation ever written.