An employment tribunal has awarded over £100k for unfair dismissal and disability discrimination.
The case involved an employee who had been absent for over 11 months before her dismissal, apart from a few weeks when her employer undertook a trial period in a different role that they deemed unsuccessful.
Two appeals were lodged by the employer against the tribunal’s finding that the dismissal had amounted to disability discrimination. They argued that the dismissal could be justified, based primarily on the 11-month absence.
The second judgment of the Employment Appeal Tribunal (“EAT”), which upheld the finding of the tribunal, provided useful guidance for employers to consider when contemplating the dismissal of disabled employees who have been absent for a long period.
Useful Guidance for Employers
When a disabled employee is dismissed following a long-term absence and the absence has arisen as a consequence of their disability, an employer can seek to argue that the dismissal was justified as a proportionate means of achieving a legitimate aim.
The EAT’s decision is a reminder that an employer should firstly identify what their legitimate aim is or aims are and, secondly, consider how it can demonstrate their actions would serve their legitimate aim or aims?
In this case, the legitimate aims were the protection of public funds and reducing the strain on colleagues caused by the employee’s absence. Legitimate aims relating to the cost of managing long-term sickness and the impact of absence on colleagues will be common for many employers in similar scenarios.
Decision-makers should consider how their decision (often dismissal in sickness absence cases) would serve the legitimate aims e.g. what would the cost-saving actually be? How would dismissal reduce the strains on colleagues caused by the absence?
Considering these questions will enable the decision-maker to then consider whether dismissal is reasonably necessary to pursue the legitimate aim or aims or whether there is a less discriminatory alternative to dismissal that should be pursued. It will help an employer facing a claim if a decision-maker can evidence its thought process to both the legitimate aim or aims and whether there were possible alternatives (and why any alternatives may have been rejected) when actually reaching their decision to dismiss.
Case: DWP v Boyers
Posted on June 23, 2022