Ill-health at work can be a sensitive issue especially when handling long term or repeated absence.
Tribunals have sympathy for employees with health issues, even where no disability is involved, and expect employers to take steps to obtain medical evidence, to consult with employees and only dismiss where “reasonable”. The difficulty with dealing with absence is treading the line between making reasonable adjustments for someone who is genuinely sick and not tolerating anyone trying to use the system.
Not making reasonable adjustment for someone’s illness –
whether physical or mental – could lead to a claim and can be tricky because
there are lots of different strands – you can directly discriminate, indirectly
discriminate, there can be discrimination arising from a disability, and the
way you build a defence depends of what type of claim it is.
Should the question of a potential dismissal arise, it is worth taking into consideration a recent Court ruling, specifically that the ACAS code of practice on disciplinary and grievance does not extend to dismissals on the grounds of ill-health.
In “ Holmes v QinetiQ ” Holmes (who was disabled) worked as a security guard. Following extensive absences, he was dismissed, as it was felt he could not do his job. At the tribunal, Qinetiq agreed it had treated him unfairly and had failed to obtain up-to-date health reports.
Homes won compensation but the tribunal did not uplift the ward by 25%, which tends to happen if an employer has not complied with the ACAS code, and he appealed.
The appeal was based on three grounds of which one is applicable here - that the ACAS code of practice applied in the circumstances and so an uplift was available. All three, however, failed.
The Employment Appeal Tribunal (EAT) did not even consider any specific breaches of the code, choosing to focus on applicability and found that:
So, in practice: