An employer has lost a case of unfair dismissal, discrimination arising from disability and failure to make reasonable adjustments after it was found that they acted incorrectly in the circumstances when they dismissed an employee who had long COVID and Crohn’s disease.
The case of Drysdale-Wood v Shared Lives South West is a reminder for businesses that dealing with sickness absence matters can be tricky, particularly if an employee is considered disabled for the purposes of the Equality Act, and it can be all too easy to make a misstep.
So, what went wrong for the employer in this case?
- The Facts of the Case
- What did the judge say?
- Kingfisher’s Advice
The Facts of the Case
The employee had over two years’ service and worked as a Shared Lives Co-ordinator – a role that involved supporting carers through telephone contact and home visits, dealing with any issues arising and undertaking assessment visits to the carers’ homes and the people they support. The employee lives with Crohn’s disease, and the employer put in place a number of reasonable adjustments to support him as a disabled person. He was later also diagnosed with long COVID (another disability under the Equality Act in this case).
Following an extended sickness absence, a meeting was held with the employee to discuss his health, an Occupational Health report was obtained, and reasonable adjustments were put in place, including a continuation of a reduced caseload. A few months later, the employee was told his current caseload level could not be maintained due to the departure of another coordinator, and an increase in the claimant’s workload was likely, although there was no increase made at that time. The employee had further periods of sickness absence, and another OH report was sought, the upshot of which was that further sickness absence remained a distinct possibility, but it was not possible to quantify the risk.
Two capability meetings were held with the employee in which the need to increase his workload was discussed, and that a small number of days of sickness absence could be tolerated over the following three months. In relation to the workload, the employer believed they could agree to an adjustment of 5% for the next six months only, as there was a potential, although not immediate, need to increase the workload. A few days later, the employee was dismissed on the grounds of capability for reasons including attendance and the employer’s workload needs.
The employee complained to an employment tribunal about how he had been treated, that he had been unfairly dismissed, there had been a failure to make reasonable adjustments and that he had been subject to discrimination arising from disability.
What did the judge say?
The judge found that the employee had been unfairly dismissed, subjected to discrimination arising from disability and that there had been a failure to make reasonable adjustments. The judge said, amongst other things, that:
- Unfair dismissal – In this case, it was not reasonable that the employer failed to allow the employee any opportunity within its capability process to show that he could meet, or at least meet in part, their reasonable expectations both in terms of attendance and their reasonable organisational needs (when they arose) in terms of workload. The employee had recognised that he might need to take on additional work and accepted that he would increase his workload if the need arose. Furthermore, it was not reasonable to follow the timeline that they did – the capability process lasted only a nine-day period before resulting in the employee’s dismissal.
- Discrimination arising from disability – The employee’s dismissal was unfavourable treatment and it was linked to the employee’s disability. To show that discrimination hadn’t taken place, the employer needed to show that their actions were a proportionate means of achieving a legitimate aim. Whilst the employer had a legitimate aim – requiring an acceptable level of attendance in order for the employee to fulfil the duties of his job role and so that the business could provide the required standard of service to service users and operate effectively – they failed to show they acted proportionately. Reasons for this included, the aim could have been achieved by less discriminatory means, allowing a small amount of absence going forward, as had originally been discussed with the employee. Furthermore, at the time of dismissal, an increase in the employee’s workload was not immediately needed, and there was no evidence that the business could not continue to accommodate a reduced workload.
Compensation will be determined at a later hearing.
Kingfisher’s Advice
It’s important to take care when managing sickness absence issues. Here are three steps that can help protect your business:
- Appropriately monitor sickness absence – this can help you to spot any patterns or concerns at an early stage, allowing you to identify what steps it’s appropriate to take, including any support the employee may need, such as reasonable adjustments
- Don’t rush a sickness absence process – whether you are dealing with long-term sickness absence or short-term frequent absence, it’s important not to cut corners and to be aware that it can be a long process that needs careful handling based on the facts of the particular case
- Seek advice on the situation you are managing – if your business is facing an issue involving sickness absence, it’s vital to seek specific advice from Kingfisher Professional Services before taking any action. Specific tailored advice can help you to deal with the situation appropriately and effectively.
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