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Reasonable Adjustments and Final Written Warnings

Should an employer wish to dismiss a disabled employee on the grounds of sickness absence, the employer could potentially face claims of unfair dismissal and disability discrimination.

There are two potential disability discrimination claims under the Equality Act 2010. The first is discrimination arising out of disability. This is unfavourable treatment because of something arising in consequence of a disability unless the treatment is a proportionate means of achieving a legitimate aim. The second is the duty to make reasonable adjustments which means that the employer must take a step (or steps) to avoid the disabled person suffering a substantial disadvantage.

In General Dynamics V Carranza, the Employment Tribunal had to consider whether discounting an earlier final written warning would be a reasonable adjustment.

The Claimant suffered from stomach adhesions. He received a final written warning in September 2011 following 206 days of sickness absence in 3 years, most of which were caused by his disability. He was dismissed in December 2012 after a further 3 months of sickness, not related to his disability.

The Employment Tribunal found that it would have been a reasonable adjustment to have disregarded the final written warning and so the ET made a finding that there had been disability discrimination. The ET also held that the failure to review the final written warning itself meant that the decision to dismiss was unfair.

The Employment Appeal Tribunal overturned both the decisions. The EAT found that the ET had not set out a sustainable basis for saying that disregarding the final written warning was a step which it was reasonable for the Respondent to have taken. The EAT also found that an employer is not required to reopen a final written warning save in limited circumstances, which was not applicable to this case.

The EAT also made a comment which will be helpful to employers in similar situations when it made the following comment in relation to discrimination arising out of a disability:

“It might have been established that the dismissal and the underlying written warning were “unfavourable treatment”. But it was legitimate for an employer to aim for consistent attendance at work; and the carefully considered final written warning was plainly a proportionate means of achieving that legitimate aim.”

About the Author

Simon Shepherd

Partner

As Partner and Head of the Employment department Simon undertakes all types of employment work.…

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