Discrimination arising from disability and formal action for attendance management

03 May 2019

Guidance for branches.

Poor application rather than poor policy

DWP Attendance Management Policy and Procedure are consistent with the Equality Act 2010. The problem that arises is poor application of policy rather than poor policy. In the case of Rock v DWP (2016) the employment tribunal stated: In the tribunal’s judgment, the difficulty is not with the procedure itself which is very well written and clear but, rather, with the application by the Respondent’s management of the procedure to its employees. (Para 139)

The case of Carrabyne v DWP (2017) is another case where poor application of policy and procedure resulted in the Employment Tribunal finding the claim for unfair dismissal, breach of section 15 of the Equality Act 2010 and breach of the duty to make reasonable adjustments contrary to section 20 of the 2010 Act all succeed. DWP was ordered to pay to the claimant forthwith the sum of £110,165.14 together with 36 months employer pension contributions with interest thereon. This briefing provides a summary of the discrimination arising from disability in this attendance management case.

Discrimination arising from disability

Section 15 of the Equality Act 2010 defines discrimination arising from disability. This is where an employer knows that someone has a disability, and discriminates against them when they treat them unfavourably because of something arising in consequence of their disability which cannot be justified. (The treatment is unjustified when, under Section 15, the employer cannot show the treatment is a proportionate means of achieving a legitimate aim.)

The facts of the case of Carrabyne v DWP (2017) reviewed by the employment tribunal were:

  • The claimant had had 64.5 days’ absence which were all related to one disability, and 59 days’ absence due to a second disability, but those long periods of absence were in 2014 and 2015 respectively. The last absence due to disability was 13 July 2015
  • The claimant received a final written warning on 28 July 2015 with a review period which ended on 27 January 2016. The Disabled Employee Trigger Point (DETP) for the review period included 4 days for non-disability absences and two further days for disability absences making a total of six days.
  • The final straw as far as absences were concerned occurred during the review period when the claimant had four days’ absence at the beginning of 2016 from 4 January to 8 January 2016  for non-disability related absence
  • The claimant then returned to work on Monday 11 January 2016 and was not absent again for any reason until eventually she was dismissed. The claimant appealed the decision but the decision to dismiss was upheld.
  • The Line Manager referred the claimant to a decision maker in January 2016, saying that the claimant's absence record was unsustainable and that there was no evidence of sustained improvement in the claimant's overall absence, especially as she was still within her final written warning review period.
  • The Decision Makers reasons for dismissing the claimant were based on both the past and the future. It was her considered opinion that the claimant had not shown an improvement in her attendance during the six month review period, and that she was not convinced that a sustained level of attendance could be achieved in the future.

The employment tribunal concluded that this was a case of discrimination arising from disability and a breach of the duty to make reasonable adjustments and an unfair dismissal because:

  • The claimant at the time of her dismissal was in work. The disability absences were a long time in the past. The claimant had not been absent at all for the whole of the review period due to her disability. The claimant's attendance had improved radically.
  • If the claimant had not been given written warnings for disability related absence the 4 day absence for non-disability related absence in January 2016 would not have meant that she was sent to a Decision Maker
  • The 4 day absence could have been accommodated by the team. The duty to make reasonable adjustments applied in the circumstances of this case for this absence.
  • The burden is upon the employer to show justification and they had not done so.
  • The Employment Tribunal could not understand the logic of the decision maker’s claim that the claimant’s history of absences would necessarily mean that in the future she would be absent for long periods of time. The evidence showed quite the opposite that absences in relation to her two disabilities had disappeared. Applying the DWP’s own policy there was a reasonable expectation that the claimant’s attendance would be sustained and it had already improved dramatically from what it had been.
  • It was wholly unfair to dismiss the claimant at this point in time when she had clearly made huge strides in relation to her attendance and her disability related absences had declined to nil. No reasonable employer would have dismissed.

A new approach for attendance management from April 2018

A new welfare focused approach for attendance management was introduced from 3 April 2018, following consultation with PCS, to achieve a fair outcome through a fair process with warnings only when necessary and dismissal as a last resort. Key guidance for supporting disability related absences under procedure and advice includes:

  • Adjustments that are reasonable must be implemented if the employee is disabled….In the case of disabled colleagues, it may be appropriate to increase the employee’s trigger point. This is known as the Disabled Employee’s Trigger Point (DETP). All adjustments implemented must be periodically reviewed but not so frequent that it becomes onerous and bureaucratic – Procedure 9
  • Spells of absence do not apply to disability related absences or gender reassignment. Planned absences for dialysis, chemotherapy or scheduled minor operations are not counted as spells - Procedure 21(b)
  • For disabled colleagues an isolated or short/moderate increase in disability related absence wouldn’t justify a warning – Procedure 26
  • In what circumstances can I award a Disabled Employee’s Trigger Point?- Advice Q6
  • How do I decide what a Disabled Employee’s Trigger Point should be? – Advice Q7
  • When should the manager consider taking attendance management action for someone with a Disabled Employee’s Trigger Point? – Advice Q8

PCS advice for branches

PCS Briefings for DWP Attendance Management include DWP/BB/021/19 for Disability Related Absences and the Equality Act 2010 and PCS Briefing DWP/BB/047/18 for Attendance Management and Disability Related Absences. PCS Briefing DWP/BB/039/18 covers the health and attendance Improvement Meeting (H&AIM). PCS and the DWP Policy Team have kept the new approach for attendance management under review since 3 April  2018. Branches should report any perverse or fundamentally flawed decisions, and may also provide feedback, to DWP Group Office.

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