Discrimination arising from disability: managing long-term sickness absence
Partner, Veale Wasbrough Vizards
In the case of Buchanan v The Commissioner of Police of the Metropolis the Employment Appeal Tribunal (EAT) has held that the application of an absence management policy to a disabled person needed to be justified, not the underlying policy itself.
Section 15 of the Equality Act 2010 (EqA 2010) provides that a person discriminates against a disabled person if they treat that person unfavourably because of something arising in consequence of their disability and the unfavourable treatment cannot be justified.
Mr Buchanan was a police officer who suffered from post-traumatic stress disorder following a serious motorcycle accident. He was on long-term sickness absence and was disabled for the purposes of the EqA 2010.
After Mr Buchanan had been absent for eight months, the police started to take steps under the Unsatisfactory Performance Procedure (UPP). The procedure is often used to manage absences, including absences of a person whose disability means they are unable to work.
The UPP contains a three-stage process which broadly consists of inviting the absent officer to meetings and then issuing improvement notices, stating what improvement is required and by when. If sufficient improvements have not been made within the period specified on the improvement notice, the officer may be called to a further meeting.
Mr Buchanan reached stage two of the UPP. However, his disability prevented him from complying with the dates specified in the improvement notices and he subsequently brought a claim for discrimination arising from disability, in relation to the application of the UPP, to the Employment Tribunal (ET).
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The ET held that the steps taken at the first and second stages of the UPP did amount to unfavourable treatment because of something arising from Mr Buchanan's disability.
The ET then went on to consider the issue of justification. It determined that it was only the UPP (as a policy) which had to be justified and not the treatment Mr Buchanan received under it. On this basis the police were able to establish that the UPP was justified under section 15.
Mr Buchanan appealed to the EAT arguing the ET's approach to the justification was based on an error of law.
Employment Appeal Tribunal
The EAT allowed the appeal. It held that Section 15 EqA 2010 required the ET to consider whether the treatment of Mr Buchanan under the UPP was proportionate and whether the application of the policy to Mr Buchanan was justified, rather than just considering whether the UPP itself was justified.
The UPP consisted of many stages and therefore a number of decisions would be required throughout the process. It was the decisions at each stage that constituted the treatment of Mr Buchanan under section 15 EqA and each of those instances had to be justified.
It is good practice to have a clear policy to follow in the event of long term sickness absence. However, this case shows that it is not just the policy that needs to be justifiable, but also the application of the policy.
In practice this means that where employers are applying an absence policy to a disabled employee, the question of reasonable adjustments must be considered at every stage.