McAllister v Revenue and Customs Commissioners
Background: Under s15 of the Equality Act 2010, an employer discriminates against a disabled employee if they treat them less favourably because of ‘something arising in consequence’ of their disability. This ‘something’ can be wide ranging and will depend on individual circumstances (examples include regular rest breaks, hospital appointments, behavioural issues and absence from work). However, a claim will not succeed if, among other things, the treatment can be objectively justified as a proportionate means of achieving a legitimate aim.
Facts: Mr McAllister, the employee, was employed by HMRC from 2011 until he was dismissed in 2018. During his employment he suffered from anxiety and depression and would often be off work for long periods of time, although not always due to mental health reasons.
Between 2016 and 2018, Mr McAllister was absent from work for 245 days on 23 occasions. HMRC decided that his absence was having an adverse impact on productivity (including the management time spent dealing with his absence) and on staff morale. It also came to the conclusion that no further reasonable adjustments could be made to support Mr McAllister’s disability and so he was dismissed. At the time of his dismissal, Mr McAllister had been absent for seven months; been given a final written warning; was unfit to return to work in any capacity and was unsure when he would be able to do so.
Mr McAllister brought employment tribunal claims, including discrimination arising from disability. HMRC accepted that Mr McAllister was disabled under the Equality Act 2010.
Tribunal decision
The Tribunal dismissed Mr McAllister’s claim. Although he had been dismissed due to his absence from work (which arose in consequence of his disability) HMRC could objectively justify the unfavourable treatment as a proportionate means of achieving its legitimate aim. This aim was to ensure staff were capable of demonstrating and achieving satisfactory attendance, which includes a fair, effective and transparent sickness management regime and efficient use of resources.
Mr McAllister appealed.
EAT decision
The EAT dismissed Mr McAllister’s appeal. It agreed with the Tribunal that HMRC had a legitimate aim and that dismissal was a proportionate means of achieving that aim. The reasonable needs of HMRC had been effectively balanced against the discriminatory effect on Mr McAllister. In particular, HMRC had demonstrated that Mr McAllister’s absence had an adverse impact on staff morale and its efficient use of resources. Further, a less discriminatory measure (such as waiting longer and giving further warnings) would not have been appropriate to achieve the HMRC’s legitimate aims.
Implications:
This decision is reassuring for employers in that where a disabled employee is provided with support over a long period (including making reasonable adjustments) and the employer has followed a reasonable process (including considering less discriminatory options), there is a good chance that a dismissal can be justified.
To provide the best chance of achieving this, it is important to explore all reasonable avenues to assist the employee. This includes taking advice from occupational health, giving them time to improve their attendance or undertake courses of treatment and making reasonable adjustments to their duties or working environment. Once this has been done, but yet nothing resolves the situation, the balance may tip and the impact of the employee’s absence becomes too great and will justify the termination of their employment.