Can employers take disability related sickness into account when dismissing for poor attendance?
In the case of General Dynamics Information Technology v Carranza, the EAT considered this issue, and the question of whether it would be a reasonable adjustment not to take disability related absences into account.
Mr Carranza suffered from abdominal adhesions, which was a disability under the Equality Act 2010. Mr Carranza’s disability caused him to be absent from work on numerous occasions. The employer would generally disregard any disability related sickness absence when looking at its trigger points for disciplinary action, although it could take it into account such absence once the disciplinary procedure had been triggered.
Mr Carranza’s level of ordinary sickness absence had already triggered a formal disciplinary procedure and in 2011, he received a final written warning. Following the warning, Mr Carranza suffered two short disability related periods of sickness absence, although his employer took no action. Mr Carranza then suffered a shoulder injury, leading to 3 months’ sickness absence, which triggered further disciplinary action. At this point, the employer sought advice from occupational health, which confirmed the shoulder injury would heal but that the abdominal adhesions were a lifelong problem and periodic absences would certainly occur.
Mr Carranza was dismissed and brought claims for disability discrimination and unfair dismissal. The employment tribunal found that the employer had failed to make reasonable adjustments, deciding that it would have been reasonable for the employer to disregard the final written warning (which had been imposed after the employer had taken previous disability related sickness absence into account). The Tribunal also held that the dismissal was unfair and that the circumstances of the final written warning should have been closely examined by the employer before dismissal.
The employer successfully appealed. The EAT decided that there had not been a failure to make reasonable adjustments. The employer did not have to disregard the final written warning upon which the dismissal was partly based. The fact that the employer had made allowances and adjustments in the past, did not mean they had to entirely disregard warnings given and the reasons for those warnings. The EAT also decided that the Tribunal had been wrong to criticise the employer for failing to examine the final written warning prior to dismissal because there was nothing to suggest that it had been given in bad faith or was manifestly inappropriate. It was fair for an employer to dismiss where continued absence was likely to be a problem and where the employee had been disciplined in the past.
This case is helpful to employers insofar as it demonstrates that it is possible to fairly dismiss a disabled employee. Even where an employer has made allowances and adjustments in the past, it does not necessarily mean that all disability related absences should be ignored when reaching a decision to dismiss.
However, an employer should always seek up-to-date and appropriate medical evidence to help justify and support its decision.