Legal Corner: Employers must justify applying absence management process to disabled employees

30th Dec 2016

Employers often have a difficult task to manage the absence of an employee who is off work for an extended period. Many employers operate some sort of attendance management policy, which has a number of stages up to and including dismissal, where an employee is not able to attend work over an extended period. However, the reason for an employee’s absence may be due to a disability, and in those circumstances, an employer also needs to ensure that it does not act in a discriminatory way towards them. The tension between these two issues was highlighted in the recent case of Buchanan v The Commissioner of Police of the Metropolis UKEAT/0112/16.

Mr Buchanan was a police motorcyclist who had been employed since 1995. In 2012 he was involved in a serious motorcycle incident whilst responding to an emergency call. The accident was not in any way his fault – his brakes had failed. Although he recovered from his physical injuries, he developed serious Post Traumatic Stress Disorder which meant that he was absent from work (certified by his GP) for an extended period.

The police operated a procedure called the Unsatisfactory Performance Procedure (UPP). The UPP was designed to deal with cases of non-attendance through an inability to attend work as well as failures of performance and lesser forms of absenteeism. It had three stages and at each stage, the UPP made clear that a line manager ‘may’ require an employee to attend a meeting to discuss his or her attendance or performance. The UPP noted that if a line manager found an employee’s absence or performance to be unsatisfactory, they must inform the individual of the improvement that was required.

Mr Buchanan was invited to a first stage meeting, at the end of which he was issued with a written improvement notice requiring him to return to work by a specified date; a failure to do so would potentially move the case onto the second stage. He was unable to return to work by that date and was therefore invited to a second stage meeting. Mr Buchanan was again given a written improvement notice to return to work by a specified date, that he was unable to meet. He was then told that the case would progress to stage 3 (the final stage) although this did not in fact occur.

It was clear from the medical evidence which the Police had seen, that Mr Buchanan was seriously ill and clearly unable to comply with the return to work dates that had been set out under the UPP.

Mr Buchanan brought a claim in the employment tribunal that the application of the UPP in his case amounted to discrimination on the grounds of his disability (the PTSD). If, as here, an employer treats an employee less favourably because of something arising in consequence of their disability, it must show that its actions amount to a proportionate means of achieving a legitimate aim. If it cannot, it will be deemed to be discriminatory under the Equality Act 2010. Mr Buchanan argued that the application of the UPP to his case amounted to discrimination and that he should not have been subjected to stages 1 and 2. He argued that in fact by doing so, his employer was making him more ill in that he was worried about the process and the possible outcomes. Mr Buchanan did not argue that the UPP itself was not a proportionate response to dealing with performance and absence issues. However, he claimed that when the UPP was applied to the disabled employee, it should be done in a measured way. There was discretion in even commencing the process, and each stage was not mandatory. The Police should have taken account of the medical evidence that it had and not gone through the motions of the procedure when it was clearly inappropriate to do so.

The employment tribunal acknowledged the difficulties in this case but accepted an argument made by the Police that the focus of the ‘proportionality’ test should be the procedure itself as opposed to its specific application in a particular case. They, therefore, rejected Mr Buchanan’s claim of disability discrimination. However, the employment appeal tribunal disagreed and took the view that the employment tribunal had made a mistake. In cases where the application of the policy was not mandatory, the focus needed to be on the particular treatment applied to an individual, and the question was therefore whether, in all the circumstances of that particular case, the application of the policy could be justified.

This case is an important reminder that when dealing with disabled employees, the application of any policy or procedure that might lead to a detriment needs to be carefully scrutinised to ensure that it is meeting a legitimate aim, and is done in a proportionate way. Each step needs to be justified in order to avoid a potential claim of discrimination.

Safia Tharoo, Barrister, 42 Bedford Row, London

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