Justifying Steps under Absence Management policies
When applying an absence management policy, employers must justify the way they have applied it to the particular employee. It is not enough to justify the policy itself.
Where discriminatory treatment arises from applying an absence management policy to a particular employee, an employer faced with a claim of discrimination arising from disability has to justify its treatment of the particular employee and the steps it has taken under that policy in relation to that employee. The employment tribunal had been wrong simply to require the employer to justify the absence management policy itself.
In Buchanan v Commissioner of Police of the Metropolis, Mr Buchanan, a serving police officer, suffered from post-traumatic stress disorder (PTSD) as a result of a serious motor cycle accident at work. He was disabled. After eight months’ absence from work, his employer began to take steps under its absence management procedure. It gave him return to work dates and issued him with written improvement notices when he did not return. His appeals were unsuccessful.
Mr Buchanan claimed discrimination arising from disability, alleging that his employer’s decisions to instigate and continue with the various stages of the absence management procedure amounted to unfavourable treatment because of his disability-related absence which his employer could not justify.
The employment tribunal accepted that Mr Buchanan had been treated unfavourably. However, when looking at justification, it took the view that it had to consider whether the employer could justify its absence management procedures as a whole, rather than the way it had applied those procedures to Mr Buchanan. Mr Buchanan appealed.
The Employment Appeal Tribunal upheld the appeal. The tribunal was required to look at the employer’s treatment of Mr Buchanan and ask whether that treatment was a proportionate means of achieving a legitimate aim. The case will now return to the employment tribunal to consider this question.
If employers only had to justify the absence management policy itself, this would not be very difficult and would seriously undermine the protection available for disabled employees. This case clarifies that employers have to be able to justify the way that they have applied their absence management procedure to individual cases.
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