Case law: Unfair dismissal of disabled employee after withdrawal of reasonable adjustment to sickness policy

Employers should consider what adjustments to make to sickness and other policies to reduce disadvantages to disabled employees, and avoid withdrawing reasonable adjustments already made - unless a change in circumstances justifies them doing so or they implement more effective adjustments - or risk claims for unfair dismissal.

An employer’s sickness absence policy contained trigger points that would result in sanctions against employees and could ultimately result in a dismissal. For example, one trigger point was that three periods of absence within a 12-month rolling period would result in closer monitoring of an employee’s attendance.

A disabled employee had ME/chronic fatigue syndrome. Occupational health had officially told her employer a number of times that she was likely to have more time off work sick than other employees. The employer therefore made reasonable adjustments to its sickness policy over a four-year period by allowing her up to five absences before the monitoring would be triggered.

In 2015, however, the employer withdrew the adjustment. Although it put in place other adjustments such as a reduction in hours and flexible working, the employee reached various trigger points and was eventually dismissed.

She claimed unfair dismissal on grounds of disability discrimination and failure to make reasonable adjustments, as required under discrimination law.

The Employment Appeal Tribunal found the original adjustment had been reasonable and there had been no change in circumstances that justified withdrawing it; and the new adjustments were less effective than the original adjustment. It therefore agreed she had been unfairly dismissed.

Operative date

• Now

Recommendation

• Employers should consider what adjustments to make to their policies to avoid disadvantage to disabled employees, and avoid withdrawing reasonable adjustments already made unless there has been a change in circumstances justifying doing so, or more effective adjustments are put in place - or risk an unfair dismissal claim.

Case ref: Northumberland Tyne & Wear NHS Foundation Trust v Ward UKEAT/0249/1/DA