Buchanan v The Commissioner of Police of the Metropolis is a case about absence management procedures and disabled employees. Although the absence management procedure in question was statutory, the case has lessons for other employers.
The employee was a police motorcyclist who was seriously injured in an accident when responding to an emergency call. He was a disabled person under the Equality Act. After eight months' absence the employer implemented its "Unsatisfactory Performance Procedure" to deal with his continuing absence from work. The procedure was statutory, but managers had a degree of flexibility as to how, or even if, the procedure was operated.
The employee was given warnings under the first two stages of the performance procedure, including requirements to return to work by specified dates, despite the fact that the medical evidence made it clear that he would not be able to comply. He complained that he had been discriminated against; taking him through the performance management process was unfavourable treatment because of something arising in consequence of his disability (his absence).
By the time the case got to the EAT it was accepted that there had been unfavourable treatment; the question was whether the employer could show that its actions were justified. The tribunal had found that it could. The employer was required to show that the absence management policy, taken as a whole, was a proportionate means of achieving a legitimate aim. It was not necessary to justify each individual step in the process.
The EAT disagreed. Under the Equality Act provisions relating to unfavourable treatment arising from a disability the employer has to show that "the treatment" is a proportionate means of achieving a legitimate aim. A tribunal should therefore identify what treatment is complained of and assess whether that treatment is justified.
In attendance management cases it will be rare for an employer to be able to justify its treatment of an individual employee simply by arguing that it has complied with its attendance management policy. This is because attendance management procedures generally require individual assessments of what is appropriate in the circumstances relevant to a particular case. There was flexibility built in to the employer's policy to allow that assessment to take place. The tribunal should have considered the steps taken by the employer under the policy that amounted to unfavourable treatment and assessed whether each was a proportionate means of achieving a legitimate aim. The case was remitted to the tribunal for that analysis to be carried out.