Long Term Ill Health Dismissals: Are They Discriminatory?
Wednesday 22nd February 2023
Whether or not dismissal due to long term ill health amounted to disability discrimination was considered by the Employment Tribunal (ET) in Mr J McAllister v Commissioners for Her Majesty’s Revenue and Customs.
Facts
Mr McAllister suffered from anxiety and depression and frequently took extended periods of absence from work. Over a two-year period, Mr McAllister was absent for a total of 245 work days, over 23 periods of absence. The Claimant’s persistent absence was having an adverse effect on other staff and no more reasonable adjustments could be made to facilitate his return. After seven months of absence, after which Mr McAllister was unfit to return to work, he was dismissed for capability reasons. On dismissal, Mr McAllister was entitled to a payment under the Civil Service Compensation Scheme. As Mr McAllister had failed to answer calls, had returned documents late, arrived to work late on his phased return and displayed generally disruptive behaviour throughout his capability process, his payment under the Scheme was reduced. Initially, it was reduced by 50%, but this was later adjusted to a 20% reduction.
Mr McAllister subsequently brought a claim for unfavourable treatment because of something arising in consequence of a disability.
Decision
In dismissing Mr McAllister the Respondent had sought to ensure staff were capable of demonstrating a good standard of attendance, uphold a fair and transparent sickness process and to ensure efficient use of resources. The ET considered that although Mr McAllister’s absences arose in consequence of his disability, his dismissal could be justified as a proportionate means of achieving a legitimate aim of ensuring staff maintained satisfactory attendance and maintaining fair and transparent absence management. However, the ET decided that the decision to reduce Mr McAllister’s payment had been because of behaviour caused by his disability. The ET considered the initial 50% reduction in Mr McAllister’s payment disproportionate, but the later decision to reduce the payment by 20% instead was a proportionate means of achieving the legitimate aims of ensuring that the Civil Service Compensation Scheme funds were distributed fairly and in line with Civil Service guidance.
Mr McAllister appealed to the Employment Appeal Tribunal (EAT), which upheld the ET’s decision. The EAT stated that the dismissal was not discriminatory and that the decision to reduce the payment to Mr McAllister by 20% instead of 50% was actually favourable treatment – he would surely have suffered a much larger reduction had his behaviour not been the result of a disability. Mr McAllister’s appeal therefore failed.
Comment
Long-term ill health dismissals can be difficult to navigate as they so often present an increased risk of disability discrimination. However, so long as a fair process is followed, this case shows that claims for unfavourable treatment can be successfully defended if there is a clear justification for the dismissal and the treatment can be shown to be a proportionate means of achieving a legitimate aim.
