In McAllister v Revenue and Customs Commissioners , the dismissal of the Claimant, who was a disabled employee on long-term sickness absence, was not discriminatory
Mr McAllister (M) worked for HMRC from May 2011. He suffered from anxiety and depression and had a lot of lengthy periods of sickness absence, some of which were not related to his mental health condition. He was dismissed in December 2018 as HMRC considered that his absences were impacting on productivity and staff morale. Moreover, all reasonable adjustments had been considered.
M was dismissed on grounds of capability and was unfit to return to work in any capacity. He was entitled to a payment under the Civil Service Compensation Scheme (CSCS), but this payment was reduced by 50% due to his conduct (he had failed to answer calls, delayed returning relevant forms, and displayed disruptive behaviour etc). He appealed this decision and upon review his payment was increased to 80%.
M, therefore, brought employment tribunal claims including a claim for discrimination arising from disability in relation to his dismissal and the reduction of his CSCS payment. At the Tribunal, M lost his claim for discrimination arising from disability in relation to his dismissal. The Tribunal found that although he had been dismissed due to ‘something arising in consequence of his disability’ (i.e. his absence from work), HMRC could objectively justify its decision as a proportionate means of achieving a legitimate aim of ensuring adequate attendance and fairly managing sickness absence.
The Tribunal upheld the appeal decision to increase the CSCS to 80% which was objectively justified. M appealed against the findings and HMRC cross-appealed the tribunal’s decision regarding the CSCS payment.
The EAT dismissed M’s appeal and allowed HMRC’s cross-appeal. It found no error with the Tribunal’s decision regarding HMRC’s decision to dismiss M. It found that absence was detrimental to HMRC and balanced this with the impact of dismissal and the aim of ensuring that staff were capable of demonstrating satisfactory attendance and a good standard of attendance. This included the aims of the maintenance of a fair, effective and transparent sickness management regime and the efficient use of resources. The Tribunal had also considered whether the aim may have been achieved by a less discriminatory measure.
The decision in relation to the CSCS payment, however, was criticised as the Tribunal had made a finding on this despite it not being a claim before it. In allowing the cross-appeal, the Tribunal considered whether being treated as entitled to a payment under the CSCS was capable of being unfavourable treatment and found that it was not as M would have not received a payment if he was dismissed for a reason not relating to his disability. Hence, the payment was more favourable to M.
Employers encountering sickness absence issues can take some comfort from this case given the view of the EAT that requiring satisfactory levels of attendance and considering the impact of absences on colleagues and their morale were legitimate aims that the employer was entitled to consider when dismissing an employee for absence relating to a disability.
Employers will need to show that they have considered all relevant evidence (including medical advice) and followed a proper process before they proceed to dismiss employees on grounds of capability for absence.
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