The cost of failing to make reasonable adjustments when managing absence
An employment tribunal in Liverpool awarded £110,165 compensation earlier this year against the Department for Work and Pensions after former employee Mrs Carrabyne (Carrabyne v Secretary of State for Work and Pensions Case 2401990/2016) was found to have been unfairly dismissed and subjected to unlawful disability discrimination following her dismissal under the absence management policy.
The tipping point for the decision to dismiss was four days' absence in January 2016 due to gastric flu.
At the time, the claimant was already on a final written warning following significant absences of 64.5 days and 59 days, which related to her recognised disabilities of depression and hip problems.
A number of reasonable adjustments had been made including a phased return to work, flexible working hours, specialist workstation equipment and extended trigger points under the absence management policy - ie, four days added to the standard eight days in a rolling 12-month period.
But the tribunal concluded that the employer was in breach of its duty to make reasonable adjustments (under Section 20 of the Equality Act 2010 akin to Section Six of the Disability Discrimination Act in Northern Ireland ) in failing to discount the absences or further extend the trigger points.
The decision to dismiss was based upon a full review of Mrs Carrabyne's attendance record and not solely the four-day absence. Her non disability-related absences would not have resulted in a first written warning, let alone dismissal. The tribunal noted that the disability absences were a considerable time ago, that her conditions were well-maintained and that she had made huge strides in relation to improving her attendance.
The tribunal concluded that under the test for unfair dismissal, as a large organisation with significant resources, the employer did not act reasonably in treating the circumstances as a sufficient reason for dismissing the employee, and in determining the case in accordance with equity and the substantial merit of the case under the ERA 1996 (Employment Rights (Northern Ireland) Order 1996), the merits of the case tipped in favour of the claimant retaining her job and not losing it.
Awarding a substantial figure of £110,165.14, the compensation ordered by the tribunal included 91 weeks' loss of earnings, £17,184 toward the cost of her Open University degree following a change in career path, three years' future loss until she qualified as a psychologist, injury to feelings and psychiatric injury of £21,318 and three years' pension contributions. An offer of reinstatement was declined by Mrs Carrabyne on the basis that she would not be able to trust the management, which the tribunal accepted.
Conversely the tribunal found that it would have cost the employer nothing to extend the trigger points, and that reasonable adjustments were available and were not put in place.
It noted that as one of the vicissitudes of life, any employee can catch a stomach bug and be off for a period of time and it was not reasonable or necessary to dismiss the claimant in the circumstances.
For large employers in the public sector, the importance of factoring in further adjustments between the final written warning and dismissal stages in an absence management policy and setting out clearly the adverse impact of an employee's absence on other staff within the department and the public services they deliver, cannot be understated. Employers should always obtain legal advice in relation to their duties and responsibilities before taking action up to and including dismissal against disabled employees under their absence management policies.
Louise McAloon is a partner in Worthingtons Solicitors in Belfast. Worthingtons and Legal Island will be delivering an absence management event at the Merchant Hotel on May 24, 2018, called Out of Office: Absence Management in the Public Sector. It will review the legal principles surrounding absence management and how to manage different types of absence, including 'the point of no return' and advising on how best to go about saying goodbye to a public sector employee whose absence record is unacceptable. For further details, please telephone 028 90434015 or email email@example.com