Disability discrimination and long-term sickness

The application of disability discrimination law to employees on long-term sickness absence continues to cause difficulties for tribunals. In West v Royal Bank of Scotland plc, Ms West’s long-term back pain was acknowledged as amounting to a disability and led her to take sick leave under the employer’s long-term disability scheme. This provided benefits for a maximum of 4.5 years but required her to relinquish her specific role with the bank – although still remaining as an employee.

After a period, however, a fresh occupational health report indicated that she would be capable of returning to work and her benefits under the scheme came to an end. The employer then turned to consider what role she could be allocated and informed her of some 29 vacancies. It told her that she could take any role that she met the qualification requirements for. She insisted, however, that before applying for any of those roles her employer should conduct a full workplace assessment to confirm that suitable adjustments could be made to accommodate her condition. The bank countered that it could not do a full assessment until it knew what role and what workplace were to be assessed. In the event she did not apply for any of the roles and she was eventually dismissed.

A employment tribunal rejected her claims of unfair dismissal, discrimination because of something arising in consequence of a disability, failure to make reasonable adjustments and indirect discrimination. In particular, it found that the dismissal was fair for ‘some other substantial reason’ and that the ending of her benefits under the disability scheme was not something that arose in consequence of her disability, but out of the occupational health assessment, which concluded that she was fit for work.

She brought an appeal in respect of the findings on discrimination which was upheld, in part, by the Employment Appeal Tribunal. The EAT held that the employment tribunal had not given adequate consideration to the question of whether the occupational health report – which resulted in her benefit being removed – was something that arose in consequence of her disability. There was a strong argument that it had, because the report had been commissioned specifically to assess the extent of her disability. The matter would have to be sent back to a fresh tribunal to determine this issue – and also consider whether the removal of her benefits under the scheme was a proportionate means of achieving a legitimate aim.

For further information contact an employment law specialist in our legal team on 01227 763939.