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Sickness absence and reasonable adjustments

Posted on 25th March 2013
Case law

The EAT has recently upheld the decision of an employment tribunal which decided that exempting an employee from the employer's short-term absence policy would not have been a reasonable adjustment.

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Adrian Green Adrian
Green
Senior Employment Law Solicitor Telephone: 01473 694403

Jennings v Barts and The London NHS Trust UKEAT/0056/12 [February 2013]

The facts

Mr Jennings worked in IT support for Barts and The London NHS Trust. He was dismissed in 2008 for poor attendance due to ill health. During his employment Mr Jennings had a number of periods of short-term absence. However, the number of absences increased from 2006 onwards. Many of the absences were due to angina and a stress related psychiatric condition. It was accepted that these conditions meant Mr Jennings was classed as having a disability.  

Mr Jennings' employer had a short-term absence policy which it rigorously applied. Following absences in July and August 2007 Mr Jennings was given a first written warning under the policy. Following the warning, given under the short-term absence policy, proceedings were then commenced under the employer's long-term absence policy. Mr Jennings was ultimately dismissed in January 2008 on the grounds of capability due to his ill health.

Mr Jennings brought a claim in the employment tribunal arguing that he had been unfairly dismissed and that his employer failed to make reasonable adjustments including exempting him from its short-term absence policy. The result of this would have been that no action would be taken against Mr Jennings for his sickness absence. The upshot of that is that his absence would have gone unchecked.

The decision

The employment tribunal decided that the adjustments suggested by Mr Jennings, which included effectively exempting him from its short-term absence policy, would not have been reasonable in the circumstances. It said that it would not have been reasonable to expect the employer to have made such adjustments in the context of the particularly busy IT service. It found that the adjustments suggested by Mr Jennings would have resulted in clear operational problems and would not have been workable for more than a short period of time.

In practice

It is often difficult for employers to manage sickness absence of employees with a disability. This case does not change that. However, it does show that, in certain circumstances, it is possible to dismiss an employee with a disability on the basis of his or her absence. It is a good example of a situation where an employer may follow its sickness absence policy and dismiss an employee with a disability providing it has investigated the possible adjustments and considered that they will not work. The tribunal in this case seemed to be swayed by the fact that Mr Jennings' department was very busy and his absence was causing operational difficulties. To allow his absence to continue unchecked was not sustainable.

This is a particularly difficult area of law and we strongly suggest employers seek advice before taking steps to dismiss any employee in such circumstances as these. Getting it wrong may leave an employer open to a claim of unfair dismissal and a claim of discrimination.

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