General Dynamics v Carranza4
In the case of General Dynamics v Carranza the EAT held that an employment tribunal deciding reasonable adjustments has to identify the “step” for the purposes of section 20(3) of the Equality Act 2010.
Facts of the case
The claimant suffered from stomach adhesions from childhood and was a disabled person. He received a final written warning in September 2011 following 206 days of sickness absence in three years, 184 of which were caused by his disability.
After the final written warning, the claimant had two bouts of disability related absences and a further three month absence because of a “painful shoulder injury while rolling over in bed”. He was dismissed in December 2012 as a result of his absence due to the shoulder injury only.
The Tribunal held that there had been a failure to make reasonable adjustments and his dismissal was unfair. The rationale of the Tribunal was that the Employer disregarded two periods of disability related absence after the final written warning so the Employer ought to have also disregarded the final written warning that had been issued essentially because of disability related absences.
The EAT overturned the decision and held that the employment tribunal had failed to identify a “step” which the employer could have taken. It doubted that the mental process of disregarding a warning is such a step, although formally revoking a warning might be. In any event, it also rejected the conclusions that this adjustment would have been reasonable.
The EAT said it would have been easier to analyse the case as one of discrimination arising from disability because it was not really about taking practical steps to prevent disadvantage. Had the case been put that way it would have been doomed to failure because the dismissal of the claimant was a proportionate means of achieving the legitimate aim of consistent attendance at work.
Points to note
Employers can and often do give disabled employees the benefit of the doubt when managing sickness absence. If being lenient once forced an employer always to be lenient, then this could have many adverse consequences. Certainly, an employer’s leniency on one or two occasions does not create a legal right for a disabled employee to have all disability related absence discounted. The EAT has made clear that employers, acting reasonably, can lawfully and fairly dismiss disabled employees.