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<strong>Case Law Update – February 2023</strong> 

As regular readers will know, here at ViewHR we like to keep an eye on what the Employment Tribunal (ET) and Employment Appeals Tribunal (EAT) have been up to, to be able to determine potential impacts on employers.  This month we consider three cases which highlight: (1) the need to follow a fair process, (2) the need for objective justification when dismissing employees for health-related absences, and (3) the need to be aware of any disabilities before making decisions.   

  1. Thorley v Christian Donnelly t/a Acute Barbers 

The case of Thorley v Christian Donnelly t/a Acute Barbers the claimant (Thorley) had a record of ill health throughout their length of service with the organisation. The Respondent (Christian) suggested that Thorley (claimant) had a pattern of being off sick on Mondays; he said that in her first 12-14 months of employment, she had more time off than other staff members combined. On the weekend before Thorley’s dismissal they had organised a house party, to which the Respondent said ‘‘don’t let me down on Monday”.  

At 07:41 on Monday 1 November 2021 the Claimant sent a WhatsApp message to the Respondent.  

She wrote: ‘Hey Chris I know your going to be mad at me but i can’t make it to work sorry I really didn’t think I was going to be this bad I’m not well at all I was a mess yesterday and I’ve woke up this morning and was sick straight away. I really thought I was going to be okay stomach is killing me and I’m all shaky..I really can’t get out of bed Chris. I’m soo sorry!’  

Christian replied to this message at 07:44 to say: ‘I’m not having this, not one sick day in a year while your job was all of a sudden the sickness is back and on Mondays don’t come in..I’m letting you go..I could do with the extra income to be honest anyway..’ 

The Claimant was dismissed on 1 November 2021 via WhatsApp. There was no formal dismissal meeting held. The Claimant was given no right to appeal. 

Dismissals for persistent absences may be categorised as conduct, capability, or some other substantial reason depending on the circumstances (Wilson v Post Office [2000] IRLR 134). However, because the Respondent did not follow a fair process based in evidence, they lost the case. The Respondent was ordered to pay a sum total of £3,435.59 to the Claimant. 

This is a good reminder that employers should define clear expectations, have policies and procedures in place and importantly implement and follow them.  Even if there are seemingly good reasons for a dismissal, failure to follow a fair process can lead to an employer becoming exposed legally. 

  1. McAllister v Revenue and Customs Commissioners 

McAllister (claimant) was frequently absent from work due to sickness. The claimant was a disabled person for the purposes of the Equality Act 2010 by reason of his suffering from anxiety and depression. Due to the high levels of absence the claimant was invited to a formal attendance meeting where he received a first written improvement warning (the claimant did not appeal); however, the claimant continued to be absent from work. Subsequent issues arose to which the claimant resigned, got signed off by his GP and then withdrew this resignation to which the respondent accepted.  

Further absences occurred. On 17 September 2018, the claimant said he was not sure he would be able to return to work and was not then fit to work in any capacity. The respondent advised the claimant that the matter would be referred to a decision-maker with a recommendation of dismissal as the business could no longer support his absence. On 4 October 2018, the decision-maker (Khan), wrote to the claimant to invite him to a meeting to discuss whether he should be dismissed or his absence supported. This meeting ultimately took place on 19 October 2018. It was common ground that, at the end of the sustained improvement period under the attendance management policy, the claimant’s absence would total 99 days, increasing to 107 days by the end of the month. Having considered the information before him, Khan concluded that the claimant’s absence could no longer be supported and he should be given notice of dismissal. This decision was communicated to the claimant by a letter of 2 November 2018, giving notice of dismissal to take effect on 28 December 2018. 

The claimant claimed he was dismissed due to unfair treatment namely arising from his disability as defined by the Equality Act. However, the respondent noted that any unfavourable treatment was a proportionate means of achieving a legitimate aim, namely: (i) to ensure staff were capable of demonstrating satisfactory attendance and a good standard of attendance (comprising the aims of the maintenance of a fair, effective and transparent sickness management regime and efficient use of resources), (ii) to provide a good customer service, and (iii) to apply the respondent’s policies fairly and consistently. 

The ET found that the claimant’s dismissal by reason of capability had been fair. 

What can employers take away from this case? This case is useful reminder for employers of the need for objective justification when dismissing employees for health-related absences, and what may amount to a legitimate aim. 

  1. Preston V E.On Energy Solutions Ltd 

The claimant (Preston) was disabled by reason of his suffering primary reading epilepsy (PRE). The ET found that this gave rise to a substantial disadvantage by reason of an increased risk of suffering tonicclonic seizures when reading. The ET concluded, however, that the respondent (E.On) had not known, and could not reasonably have been expected to have known, of this disadvantage until when the claimant was already on sick leave due to stress, unrelated to PRE. It held that no duty to make reasonable adjustments arose before that time and that the respondent had put in place all reasonable adjustments thereafter. 

The EAT dismissed the Claimant’s appeal and upheld the decision of the ET.  

What can employers take away from this case? Make it a priority to know your staff well; undertake a health questionnaire for all new starters so as to identify any disabilities early in the employment relationship. Employers should make reasonable adjustments in consultation with individuals to ensure the business fully supports staff.  

The ViewHR team supports employers with a wide range of HR matters.  If you are an employer and would like to learn more about the support we can offer to reduce the chances of finding yourself in an employment tribunal, please contact us today for an initial discussion.