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Justifying sickness absence dismissal

I deal with a good number of unfair dismissal cases involving sickness absence and was therefore interested to read about a recent case which looks specifically at the issue of justification in relation to disability discrimination.

There is often a difficult balance to be struck between an employer’s needs and the impact on the employee, taking into consideration the difference between fairness and justification.

This difference was brought under the spotlight during the case of Department for Work and Pensions v Boyers at the Employment Appeal Tribunal (EAT) in June 2020.

Ms Boyers had worked for the DWP for more than 10 years and was on long-term sickness absence due to work-related stress. She has also been diagnosed with anxiety and depressive order. She was subsequently dismissed on the grounds of ill-health capability and brought claims of unfair dismissal and disability discrimination, both of which were upheld at tribunal. 

The DWP appealed the decision on discrimination arising from disability on the grounds of objective justification and the EAT found in their favour. The EAT decided that the tribunal had focused too much on the process of dismissal and not on the justification, in other words the needs of the business. Justification included protecting scarce public funds and reducing the strain on other employees caused by the employee’s absence, which the EAT balanced against the impact on the employee to determine whether the dismissal was justified.

The case is an important reminder that a dismissal is not necessarily discriminatory even if it is judged unfair. Employers should also consider their obligations in relation to fairness and proportionality when making any dismissal decisions.   

Read the full judgement here.