The Employment Appeal Tribunal (The EAT) has determined a few cases recently relating to disability and an employer’s obligations towards disabled employees.
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:
The EAT also held that a term should be implied into the contract stating that:
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:
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.