Opinion

Give consideration to alternative arrangements for long term absence

18th September 2018

Employees suffering from periods of sickness absence is a common issue faced by employers. Long term sickness issues can be difficult but must be managed sensitively and pragmatically, particularly where an employee may have a disability that could give rise to discrimination concerns.

Claims of discrimination in respect of disability can be brought in a number of ways including:

  • Direct and indirect disability discrimination
  • Discrimination arising from disability
  • Failure to make reasonable adjustments.

In Ali v Torrosian and others t/a Bedord Hill Family Practice, Dr Ali worked as a family GP at the Bedford Family Practice. After suffering a heart attack, Dr Ali went on a period of long term sick leave. His heart condition, which was ongoing, amounted to a disability under the Equality Act 2010. An occupational health report confirmed that it was quite unlikely that Dr Ali would be able to return to full time working. He could however, as per the report, come back to work on a phased part time basis. Unfortunately Dr Ali then suffered from a shoulder injury and was signed off for a further six weeks following which, he was dismissed due to capability.

He brought claims to the Employment Tribunal for both unfair dismissal and discrimination arising from disability. The ET held that the dismissal was procedurally unfair given that the practice had not considered a part time return to work. His claim for disability discrimination however, was rejected on the basis that whilst his dismissal amounted to unfavourable treatment arising from his disability, the employer was able to justify it on the basis that it needed to provide the best possible care to patients. Dr Ali appealed.

The EAT allowed the appeal in respect of the claim of discrimination arising from a disability. The EAT stated that it was important to consider the impact of Dr Ali’s absence in respect of patient care, continuity of service and costs but that the practice (in dismissing Dr Ali) did not consider the possibility of Dr Ali returning to work on a part time basis. This would be have been a less discriminatory way of meeting the legitimate aims of the medical practice but this was not considered or addressed by the tribunal.

Employer Considerations

This is a strong reminder that a failure to consider alternatives can lead to both a procedurally unfair dismissal and could also result in a finding that unfavourable treatment cannot be objectively justified. Here the employer ought to have considered whether any strategy (i.e. a part time phased return) could have allowed Dr Ali to keep his role. The decision to reject the recommendation of the Occupational Health report ultimately contributed to the finding of an unfair dismissal and discrimination arising from disability (which has now been remitted to the tribunal for assessment on the question of proportionality).

 

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