In a decision issued earlier this year, the Industrial Tribunal confirmed that an employer fairly dismissed an employee for persistent intermittent absence under an absence management process that did not take account of the employee’s disability related absences (McKinley v Brett Martin Limited 6421/19IT).
Over a period of approximately 12 months, the employee had received verbal, written and final written warnings in relation to continued poor attendance noting that an immediate and sustained improvement in attendance was required. The employee’s absences that related to her depression were discounted by the employer when assessing her attendance record at each stage of the process. The employee did not appeal any of the warnings issued.
The employee was dismissed when subsequent to the final written warning, she was absent again for reasons unrelated to her depression and for an occasion of unauthorised absence. The claimant had reached and exceeded the trigger points in the respondent’s absence guidelines. The employee exercised her right of appeal in relation to the dismissal but was unsuccessful.
Reasonable adjustments had previously been put in place for the claimant including a change from night shift to day shift for over a year, extension of trigger points in the Absence Guidelines and the provision of lighter duties.
The tribunal accepted the evidence of the employer that short term absence had a significant impact on the workplace, more so than long-term absence and could result in a machine having to be shut down for a day due to difficulties in sourcing cover for one shift unlike long-term absence where production schedules can be managed and cover put in place in the knowledge of the long-term nature of the absence.
The tribunal found that the employer acted reasonably in treating capability as a sufficient reason for dismissal noting that the employee had a poor attendance record which had not improved; she had been consulted and received repeated warnings on numerous occasions throughout her employment; warnings that she did not appeal at any time prior to dismissal. The Tribunal found that the employer had demonstrated considerable understanding and compassion in managing the claimant’s numerous periods of absence, over the years, including those for depression and those relating to bereavement, to the extent that the employer discounted entirely all absences relating to the claimant’s disability.
The Tribunal accepted that the employer was entitled to say ‘enough was enough’ in its consideration of the employee’s extensive absence over the years and the decision to dismiss was well within the band of reasonable responses.
Employers are not required to exempt disabled employees from absence management procedures nor do disability related absence have to be discounted in their entirety (Royal Liverpool Childrens NHS Trust v Dunsby  IRLR 351). For employers, the importance of (1) seeking appropriate medical advice eg an Occupational Health assessment (2) factoring in reasonable adjustments before issuing a warning or dismissing an employee with a disability under an absence management policy and (3) setting out the adverse impact of an employee’s absence on the workplace cannot be understated. Employers should always obtain legal advice before taking action in relation to disability related absences under their absence management policies.
This case and many other disability absence cases will be explored at our upcoming event ‘Managing Sickness Absence in Northern Ireland’ in the Merchant Hotel, Belfast on the 23rd April 2020 in conjunction with Legal Island. Louise McAloon is a Partner in Worthingtons Solicitors, Belfast. For legal advice please telephone 028 90434015 or email [email protected].
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