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Spotlight on... Disability

Blog post

Kate Fielding
Written by
Kate Fielding
Published
18th July 2019
Topic
HR & Culture
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Disabled toilet sign

The Employment Appeal Tribunal (The EAT) has determined a few cases recently relating to disability and an employer’s obligations towards disabled employees.

Unfair dismissal?

In Awan v ICTS the EAT held that an employer dismissing an employee who is on long term sickness absence before the expiry of their contractual long-term disability benefits may be at risk of acting unfairly.

Mr Awan was entitled to long-term disability benefits under his contract of employment in the form of a Group Income Protection Scheme. Under the scheme Mr Awan was entitled to income protection provided that he was incapacitated by illness or injury such that he was unable to work and that he continued to be employed by his employer. In 2012 Mr Awan was certified as unfit to work due to depression. He was still absent from work when his employment was terminated in 2014.

In 2014 the Respondent held an absence review meeting with the Claimant. The Respondent concluded that Mr Awan’s symptoms had not improved, they had been unable to agree on any adjustments that might facilitate his return to work and that there was no reasonable prospect of a return to work in a defined or reasonable period of time. The Respondent dismissed the Claimant on grounds of medical capability.

The Claimant claimed unfair dismissal and discrimination arising from disability because he had been dismissed while he was still entitled to long-term disability benefits. The Employment Tribunal dismissed the claim. However, the Employment Appeal Tribunal overturned this decision. The EAT held:

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It is contrary to the functioning of the long-term disability plan, and to its purpose, to permit the Respondent to exercise the contractual power to dismiss so as to deny the Claimant the very benefits which the plan envisages will be paid.

The EAT also held that a term should be implied into the contract stating that:

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Once the employee has become entitled to a payment of disability income due under the long-term disability plan, the employer will not dismiss him on the grounds of his continuing incapacity to work.

Linsey v HMRC

In Linsley v HMRC the EAT held that employers should follow the recommendations in their own policies when making reasonable adjustments for disabled employees.

Mrs Linsley had a long-term medical condition which was exacerbated by stress. She attended several assessments with her employer’s occupational health provider who recommended, among other things, that she be provided with a dedicated parking space. The HMRC policy was that employees should be provided with dedicated parking spaces where this was recommended by occupational health. Despite her repeated requests, and although she was provided with alternative arrangements, Mrs Linsley was not provided with a dedicated parking space. She claimed that her employer had failed to make reasonable adjustments in not providing her with a dedicated parking space, contrary to its own policy on employee car parking.

The Employment Tribunal dismissed the claim, asserting that the Claimant had failed to show that the provision of a dedicated parking space was the best or only reasonable adjustment that could be made. It also held that, as the policy was non-contractual, the employer was not obliged to follow it. The Employment Appeal Tribunal disagreed, concluding that:

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An adjustment which is recommended in an employer’s own policy is one that is likely, at least as a starting point, to be a reasonable adjustment to make…there may be a good reason, in a particular case, to depart from the policy. However, one would expect in such a case that the employer would provide a good reason for departing from the policy…the policy does not need to be contractual in effect for it to be relevant in determining whether an adjustment which it recommends is reasonable or not.

What does this mean for my co-operative?

Care should be taken to be mindful of any policies and procedures in place when dealing with an employee with a disability or long term health condition. Employers should not take decisions regarding the future of an individual’s employment without giving consideration as to how this might impact their ability to receive benefits, for example sick pay or long term disability benefit, that they would otherwise be entitled to. Equally, when determining what may or may not be a reasonable adjustment, care should be taken to consider the relevance of any existing policies; where it is decided to depart from a policy in a particular case, there should be good reason for doing so.

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