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A guide to disability discrimination in the workplace

Reasonable adjustments

Where a disabled employee is at a substantial disadvantage (in relation to any provision, criteria or practice (PCP) applied in the workplace or in relation to the physical feature of the premises) an employer has a duty to make reasonable adjustments to remove that disadvantage. It is important to note that the employer does not have to make all possible adjustments, only those which it is deemed reasonable for them to make.

Sickness policies

Where an employer applies a sickness absence procedure to a disabled person who has been off on long-term sickness absence, it can be argued that although the sickness absence policy applies equally to everyone it affects disabled workers in particular because they may have more sickness absence than other non-disabled employees.

More sickness absence means that an employee is more vulnerable to being dismissed on grounds of capability.

In the case of Griffiths v Secretary of State for Work and Pensions [2016] IRLR 216, an employee was dismissed as result of long-term sickness absence. The Court of Appeal in Great Britain considered that the PCP in that case was the requirement to maintain a level of attendance and that this put those with a disability at a substantial disadvantage when compared with those who did not have a disability triggering the reasonable adjustments duty on the employer’s part. However, the Court of Appeal held that, in that case, it was not reasonable for the employer to make an adjustment by either removing the written warning she had been given because of her sickness absence or adjusting the trigger under the sickness absence procedure. The Court took into account the fact that there was likely to be further lengthy absences so the adjustments would not have the prospect of removing the disadvantage. 

In the recent Northern Ireland case of McKinley v Brett Martin Ltd [2020] NIIT 6421/19, the employee was given disciplinary warnings due to poor attendance including for disability related absence. Her attendance record came to a head in 2018 and as well as disability related absence, the employee was off work for non-disability related reasons including admitted unauthorised leave ultimately leading to a disciplinary hearing and her dismissal. As a consequence of her dismissal, the employee brought an unfair dismissal and disability discrimination claim, the latter on the basis that reasonable adjustments were not made by the employer.  

The tribunal rejected both claims. In relation to the allegations of a reasonable adjustments breach, this claim was dismissed on the basis that the employer was able to show that it had ignored the disability related absence in its decision making process i.e. the tribunal took the view that the employer had complied with its reasonable adjustments duty in discounting disability related absence.  

Whether an adjustment is ‘reasonable’ will depend on the particular facts of the case. If there is no prospect of a disabled worker being able to return to work with reasonable adjustments, it is unlikely the tribunal will find that it is a reasonable adjustment for the employer to disapply its sickness absence procedure to a disabled worker altogether. It may, however, be reasonable to adjust the threshold of when the sickness absence policy will apply to take into account disability absence, if there is evidence that the absences are likely to be kept to a reasonable level.

How Thompsons NI can help

If you require advice on your rights at work, make contact with your local trade union representative who can, if necessary, seek advice from Thompsons NI who are ranked by Chambers legal directory at Band 1 for employment and personal injury work.