Caution if imposing attendance targets on employees with disabilities

Councils need to be Careful when imposing attendance targets on Employees with Disabilities

A Senior Nurse who was sacked for exceeding targets set by her Employer’s attendance management procedure, was Unfairly Dismissed and suffered Discrimination, due to her disabilities.

The Nurse who had been diagnosed with chronic migraine, anxiety and depression had taken 300 days sick leave during her ten-year employment, mostly due to these problems.  Her Employer’s sickness management procedures counted days off due to disabilities, along with other non-disability absences. According to the Tribunal Judge (McKenzie v University Hospitals of Leicester NHS Trust) this had failed to create a level playing field for the disabled Employee. 

This was because the procedure left little room for other legitimate absences such as viruses and bugs.  As a consequence, McKenzie regularly exceeded the absence management threshold/targets set by the Hospital’s attendance procedure, which ultimately led to her dismissal.

She had been assessed by an Occupational Health Specialist in October 2017, whose report found that she was susceptible to regular migraines.  During the same year she exceeded the absence threshold and received a Formal Written Warning.  She was again absent between September 2018 and January 2019, during the live period of the written warning, which result in her receiving a Final Written Warning.

Following further absences caused by a combination of migraine and sinusitis, she was dismissed in May 2020.

In the opinion of the Tribunal Judge this decision was in part due to reasons arising from her disabilities, which should not have been counted as part of the attendance procedure.  Furthermore the absences linked to the disabilities should not have been used as part of a disciplinary process.

As a consequence of combining both disability and non-disability linked absences, the Claimant has been treated unfavourably as a direct consequence of their chronic health problem, and as a result the claim for Disability Discrimination succeeded.

A reasonable sickness management procedure should start by determining whether the Employee’s time off is due to a disability issue or not.  If it is the Council needs to investigate what reasonable adjustments they can put in place to help accommodate the Employee, not discipline them.

Menopause as a cause of Disability/Sex Discrimination

The number of claims to the Employment Tribunal referring to menopause has doubled in twelve months.

Currently the menopause isn’t included in the Equality Act 2010 as a stand-alone protected characteristic, however the fact that it only affects females means that it can qualify as potential Sex Discrimination.  Also, the fact that its effects last for 12 or ore months, and affects the sufferer’s daily life, means that it could also qualify as a disability.

Employees with a disability are entitled to expect the Council to go the extra mile to help accommodate them at work. For example, a wheelchair bound Employee could be provided with a ramp to enable them to access the workplace.  Similarly, a visually impaired Employee may need specialist computer software to help them read a VDU.  Such adjustments would not be needed by an able-bodied Employee, but are essential to help create a level playing field for the Disabled Employee.  Similar adjustments may be needed to help accommodate menopausal Employees.

To find out what adjustments would be appropriate Councils would be wise to get an Occupational Health assessment, should an Employee be experiencing difficulties at work.

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PROFILE

Chris Moses LLM Chartered FCIPD is Managing Director of Personnel Advice & Solutions Ltd.  He is a Chartered Fellow of the Chartered Institute of Personnel and Development, and has a Master’s Degree in Employment Law. If you have any questions regarding these issues please feel free to contact him on (01529) 305056 or email p.d.solutions@zen.co.uk

www.personneladviceandsolutions.co.uk