Long-term sickness absence can be difficult for any employer to handle, even more so where the employee is also disabled. Disability is one of the nine ‘protected characteristics’ covered by the Equality Act 2010. This act protects disabled employees from all forms of discrimination, including disability discrimination.
The general position under the Equality Act 2010 is that discrimination arising from disability occurs where A treats B unfavourably because of something arising in consequence of B’s disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. What this means is that unfavourable treatment can be justified by employers in certain circumstances.
A recent case has questioned whether it is sufficient to show that the policy from which the unfavourable treatment flowed must be justified or whether the employer must be able to justify the specific treatment itself.
Disability Discrimination Case
In the case of Buchanan v The Commissioner of Police for the Metropolis the Claimant, Mr. Buchanan, had been in service with the Police since 1995. In 2012, while responding to an emergency call, Mr. Buchanan was involved in a serious motorcycle accident when the brakes on his motorcycle failed. Mr Buchanan recovered physically but developed Post Traumatic Stress Disorder (PTSD) as a result of the accident. By April 2013, he was considered a disabled person for the purposes of the Equality Act 2010.
The Claimant was absent from work for 8 months before the Respondent began to take steps under the Unsatisfactory Performance Procedure (“UPP”). UPP is a procedure which derives from the Police (Performance) Regulations 2012. UPP is intended to address issues of non-attendance arising from illness, performance failures and other forms of absence. Under this procedure, the Claimant was issued notices requiring him to return to work. This was despite the Respondent being aware that the Claimant was unable to return to work due to his disability.
Mr. Buchanan claimed disability discrimination on the basis that UPP, and the way UPP operated, could not be justified. Moreover, the Claimant argued that the Respondent should not have persisted in pursuing UPP or should have used their discretion to follow it in a more measured way.
The Respondent attempted to justify UPP under section 15 of the Equality Act 2010 on the basis that UPP was a proportionate means of achieving a legitimate aim and that consequently, the treatment that flowed from the procedure could be justified.
The Tribunal held by majority that, though there had been unfavourable treatment, it could be justified as UPP was proportionate means of achieving a legitimate aim.
The claim progressed to the Employment Appeals Tribunal, where it was held that, while there are cases where treatment will be justified where there is an underlying policy/procedure that can be justified. In this case, it was the application of that policy/procedure itself that needed to be justified. UPP did not mandate the Respondent to take various steps. The EAT held the Respondent should have considered their discretion under the procedure and that reasonable adjustments could have been made at certain points throughout the process.
The case acts as a reminder that employers should have a dedicated process for dealing with disability/mental health sickness. Furthermore, where a policy or procedure allows for discretion, managers implementing it should be trained to understand the extent of their discretion and should be alert to the issue of disability in light of the legislation.
