Duty to Make Reasonable Adjustments Did Not Require Employer to Ignore Final Written Warning for Absence

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Posted on 17 Nov 2014

An employer was not obliged to ignore a final written warning when dismissing a disabled employee for sickness absence.

In General Dynamics Information Technology v Carranza, the employer’s sickness absence policy was triggered after a certain level of absence. Disability-related absence was ignored for the purposes of the trigger but could be taken into account when deciding what action to take under the policy.

C, who was disabled, received a final written warning for absence. He had been absent for 41 weeks in three years and 37 of those weeks were for disability-related absence. He had two further short periods of disability-related absence which prompted no action from his employer. However, he then suffered a shoulder injury which caused him to be absent for three months. At a hearing convened under the absence procedure, the employer took account of advice from occupational health that the shoulder injury would last only a few months but C’s disability was a life-long condition which would lead to similar patterns of absence. It decided to dismiss him.

C claimed unfair dismissal and disability discrimination. The employment tribunal upheld his claims, finding that it would have been a reasonable adjustment for the employer to ignore the final written warning. Having disregarded the two short periods of disability-related absence, it would have been reasonable to have disregarded other disability-related absences as well. It also held that the dismissal was unfair as a reasonable employer would have looked at the circumstances of the final written warning in context. 

The EAT overturned the tribunal’s decision. The mental process of disregarding the final written warning was not the sort of “step” contemplated by the duty to make reasonable adjustments. In any event, there was no sustainable basis for the tribunal to conclude that it would have been reasonable to disregard the final written warning. The fact that the employer had shown leniency in the past and ignored the two short periods of disability–related absence did not mean it was legally bound to ignore all disability-related absence, regardless of the business impact.

In addition, in the absence of anything to suggest that the final written warning had been issued in bad faith or was manifestly inappropriate, the tribunal had not been entitled to re-open the final written warning to consider whether it was justified. The employer had been entitled to take the final written into account when deciding whether to dismiss and the dismissal was fair. 

Employers are entitled to take disability-related absence into account when applying their sickness absence policy, provided that they have first made all reasonable adjustments to assist an employee’s attendance. This case makes it clear that just because an employer has shown leniency in the past and disregarded a period of disability-related absence does not mean they are legally obliged to disregard all previous disability-related absence. The duty to make reasonable adjustments does not oblige an employer to ignore a final written warning for absence.

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