The latest ruling from the European Court of Justice (ECJ) suggests that intermittent sickness absence thresholds, which allow employers to dismiss staff once a trigger point has been breached, are potentially discriminatory against disabled employees.
Many employers operate sickness absence procedures with “trigger points” which allow action to be taken once there has been a certain amount of absence in a defined period. Initially this may just be a warning but, ultimately an employer may dismiss an employee based on trigger points being reached.
Under Spanish law, provisions permitting dismissal of staff on the grounds of intermittent sickness absence include what are known as absence thresholds, or trigger points. Once an employee’s sickness absence passes the threshold, the employer is entitled to dismiss.
However, in the case of Ruiz Conejero v Ferroser Servicios Auxiliares, the ECJ has ruled because a disabled employee is more likely to have sickness absences than a non-disabled worker, such thresholds put disabled employees at a clear disadvantage.
Therefore unless the Spanish provisions, can be justified objectively by the employer, are potentially indirect disability discrimination.
Combating absenteeism is certainly a legitimate aim so it is up to the national courts to rule on whether the provisions are a suitable way to achieve that aim, or whether they are excessive.
This ECJ ruling reflects the current approach of the UK courts and tribunals. Under the Equality Act 2010, the issue of trigger points in absence management policies often has to be considered as part of a claim for indirect disability discrimination, disability related discrimination or a failure to make reasonable adjustments. The answer is always case specific and employers are not required to ignore all disability related absence for ever; there will come a point when a tribunal considers that it is fair and non-discriminatory to dismiss someone because of their absence levels. The difficulty for employers comes in assessing when that safe time has come.