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Absence Management and the Scope of Disability Discrimination

There have been several recent case law developments focusing on absence management and the scope of disability discrimination under the Equality Act 2010. In this alert, Partner Beth Hale and Trainee Solicitor Rachael Parker take a look at some of the key cases and consider the lessons that can be learned from them.

Knowledge of Disability

An employer cannot be liable for direct disability discrimination, discrimination arising from disability or failure to make reasonable adjustments unless it knew (actual knowledge), or should have known (constructive knowledge), about the employee’s disability. However, this does not apply to indirect disability discrimination.

A Limited v Z [2019] IRLR 952, EAT

The Claimant worked as a bookkeeper for A Limited, and suffered with mental impairments, including depression and schizophrenia. She took over 30 days sickness absence and gave reasons not related to her mental impairments.

The Claimant was subsequently dismissed for poor attendance and poor time-keeping. At the point in which the Claimant was dismissed, and despite the reasons given for her absence, A Limited had various GP certificates citing mental health issues.

The Claimant presented a claim in the Employment Tribunal for disability discrimination. The Employment Tribunal held that A Limited should have inquired into the Claimant’s mental health, and its failure to do so precluded it from denying knowledge, whether actual or constructive, of the Claimant’s disability. However, the Tribunal also held that the Claimant would have continued to hide her mental health problems, even if A Limited had enquired about them.

The EAT disagreed. It was accepted that the Claimant would have continued to hide her disability, even after inquiries, that A Limited did not have had constructive knowledge of her disability at the time of dismissal.

Stott v Ralli Ltd [2022] IRLR 148, EAT

The Claimant worked as a paralegal for Ralli Ltd (“R”) for three months. The Claimant was dismissed for poor performance and submitted a grievance following her termination, stating that R had been informed of her mental health issues in several communications and that her mental health had affected her performance. The Tribunal found that at the time of her dismissal, she suffered from anxiety and depression, and which amounted to a disability under the Equality Act.

The ET and EAT dismissed the claim, finding that the Claimant had been dismissed for poor performance and that the Claimant had not disclosed the impairment to R prior to the dismissal. Thus, R had no actual or constructive knowledge of the Claimant’s disability at the point of dismissal but had only acquired constructive knowledge following receipt of the grievance.

Discrimination arising from a disability

Under the Equality Act, an employer is prohibited from treating an employee unfavourably because of something arising from their disability. A two-stage test is applied by tribunals in determining whether discrimination arising from disability has occurred:

  1. Did the claimant’s disability cause, have the consequences of, or result in, the “something”?
  2. Did the employer treat the claimant unfavourably because of that “something”?
Cowie v Scottish Fire and Rescue [2022] EAT 121

The Respondent operated a paid special leave policy which included a condition that, once employees’ accrued time off in lieu (“TOIL”) had been exhausted, they could request paid special leave to deal with matters such as unforeseen childcare. During the COVID-19 pandemic, a number of employees were shielding, and some could not perform their duties from home. The Respondent extended its paid special leave policy temporarily, to address those circumstances, but TOIL and annual leave had to be used first.

Two groups of Claimants alleged that the requirements imposed: (1) amounted to unfavourable treatment for disabled employees, and (2) gave rise to a particular disadvantage for female employees. The Tribunal held (1) there was unfavourable treatment arising in consequence of a disability, but no award was made as the Tribunal could not establish any loss, and (2) there was no group disadvantage to women.

Both groups appealed and the EAT held:

  1. The disabled employees were being granted an advantage by being entitled to special leave in instances where they could not work due to their disabilities. It was not appropriate to separate out the conditions that were imposed from the benefit being received.
  2. The female employees had not suffered a disadvantage as the ability to take the special leave was favourable treatment. With the same reasoning being applied in that the policy and conditions attached could not be looked at separately and in isolation from the benefit being provided.
Mr J McAllister -v- Commissioners of Her Majesty’s Revenue and Customs [2022] EAT 87

The EAT considered whether an employee who worked for HMRC had been subjected to disability discrimination in being dismissed.

McAllister had anxiety and depression, which was found to be a “disability” for the purposes of the Equality Act 2010. Over 2 and a half years, he was absent for a total of 245 days on 23 separate occasions. HMRC considered that these regular absences were having a detrimental impact on both productivity and staff morale. HMRC also considered that they had made all reasonable adjustments possible to accommodate McAllister’s disability. He was dismissed for capability. Because McAllister was dismissed due to capability, he was entitled to a payment under the Civil Service Compensation Scheme. McAllister had his award reduced by 50% as it was deemed he did not engage fully with the process.

McAllister brought his case to the tribunal claiming that he had suffered discrimination arising from disability in relation to his dismissal and reduction of the CSCS payment. Whilst the tribunal did say that McAllister was dismissed due to something arising from his disability they went on to say this was objectively justified being a proportionate means of achieving a legitimate aim. The dismissal was therefore not discriminatory. The EAT upheld the decision.

Key points for employers

  1. Knowledge is not retrospective: later information does not give rise to earlier constructive or actual knowledge of a disability.
  2. Take advice at the earliest stage possible when implementing new workplace policies which may, directly or indirectly, be discriminatory to certain categories of employees.
  3. A paper trail setting out the reasons for decisions will be helpful in showing non discriminatory causation as well as demonstrating a legitimate aim for any decisions.
  4. Employers who are considering taking action (up to and including dismissal) against individuals with disabilities must:
(a)        first consider every reasonable adjustment that could be made;
(b)        be able to articulate a legitimate reason for the action taken; and
(c)        be able to demonstrate that the action was proportionate in all the circumstances.
If you would like to discuss any of the topics covered in this alert update in more detail, please contact Beth Hale or Rachael Parker, who both specialise in employment law issues for multinational employers, senior executives, partnerships, LLPs, partners and LLP members.