As we have written about previously, there is a range of legal protections in place for employees with disabilities. Indeed, there are two forms of discrimination that apply to only disability and not to other protected characteristics, namely a failure to make reasonable adjustments and Discrimination Arising From a Disability (DAFD). The latter is the focus of this update.
DAFD involves unfavourable treatment linked not to the disability itself, but to something that has come about because of the disability. In many cases, the ‘something’ will be absence, and the unfavourable treatment is the employer taking formal action, such as issuing a warning or dismissing the employee, because of their absence.
It is possible for an employer to justify some forms of unfavourable treatment, including disciplinary action, if they can show that the treatment was a proportionate means of meeting a legitimate aim. That means that the employer must show that they have a valid aim and that there was no less discriminatory way of achieving that aim.
As with so many things in law, what is proportionate will depend on the circumstances of each case, as can be seen in the cases below.
Ali v Torrosian & Others
In this case, Dr Ali was a GP in a medical practice, who had a heart attack and subsequent ongoing heart condition that fell within the legal definition of a disability. The employer sought a medical opinion on Dr Ali’s ability to work, which confirmed that he would most likely never be able to work full-time again, but would be able to return on a part-time basis.
Following notification of another period of absence due to an unrelated shoulder condition, Dr Ali was dismissed on capability grounds with immediate effect, due to his inability to return to full-time work. Dr Ali then claimed DAFD.
The Employment Tribunal (ET) found that his employer had a legitimate aim in dismissing him, which was to ensure that the practice was able to provide high quality care. The ET also accepted evidence that Dr Ali’s absence led to more work for his colleagues and that the practice was unable to find a permanent replacement for him while he was still employed, which adversely impacted patient care. Accordingly, the ET decided that Dr Ali’s dismissal was a proportionate means of meeting the practice’s aim.
Dr Ali appealed that decision, and his appeal was upheld by the Employment Appeal Tribunal (EAT). The EAT found that there had been no meaningful consideration of part-time working as an alternative to dismissal and, as allowing reduced hours could have been a less discriminatory way of the practice meeting its aim, the appeal had to be allowed.
The case has now been referred back to the ET to decide whether the decision to dismiss Dr Ali was in fact proportionate, taking into account the lack of consideration of part-time working.
DL Insurance Services v O’Connor
The employer in this case had a sickness absence policy that stated that disciplinary action might follow if an employee’s absence reached certain trigger points. The policy also stated that managers should obtain a medical opinion, from occupational health where possible, before issuing a disciplinary warning to an employee with an ongoing medical condition.
Mrs O’Connor was disabled and for several years had reached and exceeded the absence trigger points outlined in the sickness absence policy. However, no disciplinary action was taken against her previously.
When Mrs O’Connor was absent for 60 days in a 12 month period, her employer invoked its disciplinary process and issued a first written warning for absence. Notably, the employer did not obtain a medical opinion in relation to Mrs O’Connor, nor did the disciplining officer discuss the impact of Mrs O’Connor’s absence with her line manager, before taking disciplinary action against her.
Mrs O’Connor claimed DAFD, and the ET found that her employer had a legitimate aim in following a disciplinary process, namely improving attendance in the workplace. However, both the ET and EAT decided that issuing the written warning was not a proportionate means of meeting that aim.
In particular, the disciplining officer was unable to explain why the warning would help the employer to meet its aim, given that Mrs O’Connor’s absences couldn’t be avoided. Furthermore, both the lack of evidence in relation to the impact of Mrs O’Connor’s absences on the company and the company’s failure to obtain a medical opinion meant that the employer could not show proportionality.
What does this mean?
These cases highlight the need for employers to consider all the options in cases of disability-related absence. While it will not always be unlawful for an employer to issue a warning or dismiss an employee in these circumstances, failing to do the homework in advance can make it much more difficult for an employer to justify its actions.
Having a legitimate aim is generally the easier part, as it was in the cases above, but justifying the means is often much more complex. In relation to giving a warning, employers should be prepared to explain how their treatment of the employee will help to achieve the legitimate aim. That will usually involve a consideration of the negative impact caused by the employee’s absence, assuming that there is one, and potentially providing evidence that disciplinary action reduces absence.
Dismissal should always be a last resort in cases of this kind, and failing to consider alternatives is a high-risk approach. One of the basic tenets of disability discrimination law is that all reasonable steps should be taken to allow the employee to stay in work, which will generally include considering changes to working patterns and/or any other adjustments as alternatives to dismissal.
In either case, a medical opinion should be sought to inform the process, and not doing so will almost certainly reduce any chance of the employer being able to justify its decisions.
If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.