Exempting A Disabled Employee From An Absence Management Policy Was Not A Reasonable Adjustment

Jennings v Bart’s and the London NHS Trust

In this case, the Employment Appeal Tribunal (“EAT”) was tasked with deciding:-

• Whether a disabled employee had been unfairly dismissed; and

• Whether the employer had failed to make a reasonable adjustment by not removing the disabled employee from its absence management policy.

Employers are under a duty to make reasonable adjustments where a provision, criterion or practice (“PCP”) is applied and puts a disabled employee at a substantial disadvantage compared to those who are not disabled.

This applies where the employer knows, or is expected to reasonably know about the employee’s disability and the effects this has of putting them at a substantial disadvantage because of their disability.

Here, Mr Jennings (suffering from a paranoid personality disorder and depression) had a number of periods of intermittent absence, which were followed by a long period of absence of over 100 days in an 8 month period. The employer invoked both their short-term and long-term absence policies.

The relevant PCP (the application of the Trust’s short-term absence procedure) put Mr Jennings at a disadvantage due to his condition. This meant he was more likely than a non-disabled person to be absent from work and be disciplined under the policy as a result.

Occupational Health had provided a number of reports suggesting a phased return to work. Nevertheless, the employee was dismissed at a final-stage meeting under the long-term absence procedure for poor attendance due to his ill health. It was felt that his continued absence was unfair on others. He had also been unable to set a return to work date.

The EAT held that the employee’s dismissal was fair. This was regardless of the fact that Occupational Health had recommended that the employee return to work on a phased basis. His attendance record was incredibly poor, and it was not considered to be a ‘borderline’ case as to whether the dismissal was fair or not.

It was held that removing the disabled employee from the Company’s short-term absence policy was not a reasonable adjustment that should have been made and that as such, the employer had not breached its duties under the Equality Act.

It was also held that although the employee was initially wrongly diagnosed, it was clear that he had a long-lasting mental condition which had a substantial effect on his day to day life. It was not considered relevant that the diagnosis at the time was incorrect.

A few further interesting points arise from this decision:

• Employers may still have imputed knowledge of an employee’s disability, even in circumstances where the disability is wrongly labelled or diagnosed; and

• It is not the case that a dismissal will always be considered procedurally unfair, where an employer has breached their own absence policy.

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