Ignoring a final written warning for sickness absence was not a reasonable adjustment
The Employment Appeal Tribunal (“EAT”) has overturned a Tribunal’s findings of disability discrimination based on a failure to make reasonable adjustments and unfair dismissal in a case involving recurrent sickness absence which was unlikely to improve.
In the case of General Dynamics Information Technology -v- Carranza, the employee had received a final written warning for repeated absences, about 90% of which had been disability-related. He was then dismissed following further absence caused by a shoulder injury that was unrelated to his disability. The employer had a detailed sickness policy with various “trigger points” for formal action to be taken.
The EAT rejected the employee's argument that the employer should have ignored the final written warning when deciding whether to dismiss the employee for the later absence as a reasonable adjustment. In the EAT's view, the mental process of disregarding a warning was not the kind of "step" that is contemplated by the duty to make reasonable adjustments.
In any event the Tribunal had set out no sustainable basis for concluding that it was reasonable for the employer to disregard the warning, and the fact that it had shown leniency in the past did not mean it was legally bound to do so again regardless of the business impact.
The EAT also rejected the argument that the dismissal was unfair because the employer had failed to reconsider at the time of dismissal whether the earlier final written warning had been justified. There was nothing to suggest the warning had been given in bad faith or was manifestly inappropriate.
Whilst the facts in this case are fairly specific and the level of absence high (41 weeks of absence in a three year period, 37 weeks of which were disability related), the EAT provided some helpful comments in relation to conduct dismissals and the circumstances when it will be appropriate to revisit previous warnings. In this case the EAT stated that it was not the Tribunal’s function to re-open the final warning, rather the issue to determine is whether the warning is a circumstance which a reasonable employer could reasonably take into account. The Tribunal should look at whether it was given in good faith, whether there were prima facie grounds for giving it and whether it was “manifestly inappropriate”. The same principles apply for warnings in other types of cases, e.g. sickness absence and capability cases.
The case provides clear guidance that there are limits to the extent to which an employer can be expected to revisit what has happened at earlier stages of any process when considering dismissal. When looking at the standard of the “reasonable employer” it was not open to the Tribunal to require the employer to have re-opened the circumstances of the final written warning.
For dismissing managers it is good advice to review the circumstances of previous warnings to make sure that there are no obvious errors or procedural flaws. They are not required to go back and essentially decide the matter again by re-opening the previous circumstances. Managing sickness absence, whether or not disability-related absence is involved, is a difficult area for many businesses. This case gives some reassurance that a practical approach can be taken. In this case the employer had taken medical advice following the final written wanting which indicated that absence patterns were unlikely to improve – this will always be important advice to obtain before a decision to dismiss is taken.
If you would like further advice about managing sickness absence, please contact a member of the Employment team.