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Disability Discrimination – Dismissing a Depressed Employee

Can an employer safely dismiss a disabled employee for reasons connected to their disability?

Under section 15 of the Equality Act 2010, a person suffers discrimination arising from disability if they are treated unfavourably because of something arising in consequence of their disability, and the person treating them unfavourably cannot show that the treatment was a proportionate means of achieving a legitimate aim.

For the purposes of the Equality Act, a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Mental health issues such as anxiety or depression may amount to a disability if they have a substantial and long-term negative impact on the individual’s ability to go about their day-to-day life.

In McAllister v Revenue and Customs Commissioners, McAllister worked for HMRC from May 2011 until December 2018. During this time, he suffered from anxiety and depression, and was absent from work for long periods of time – although not all of these absences related to his mental health issues. Between 2016 and the termination of his employment, McAllister missed a total of 245 days of work on 23 different occasions. HMRC concluded that McAllister’s absences were having a noticeable impact on staff productivity and morale, and that they had made all reasonable adjustments that they could – consequently, McAllister was dismissed for reasons of capability.

McAllister brought Employment Tribunal claims for discrimination arising from disability, for, among other things, his dismissal. It was accepted by HMRC that McAllister was disabled for the purposes of the Equality Act.

The Tribunal rejected McAllister’s claim. While he had been dismissed due to something arising in consequence of his disability – his absences from work – HMRC could justify the unfavourable treatment as a proportionate means of achieving several legitimate aims:

  • ensuring that staff were capable of demonstrating satisfactory attendance;
  • maintaining a fair, effective and transparent sickness management regime; and
  • efficiently using resources.

McAllister appealed to the Employment Appeal Tribunal (EAT).

The EAT dismissed the appeal. The Tribunal had been permitted to conclude that HMRC’s aim of ensuring satisfactory attendance was legitimate. The Tribunal had also carried out the correct balancing exercise, comparing the negative impact on HMRC of McAllister’s absences against the discriminatory impact of dismissal on McAllister, and found that the absences had a significant impact on HMRC resources, time management, and staff morale. The EAT confirmed that it was entirely open to the Tribunal to reach the decision that it did.

This case provides an important reminder that the unfavourable treatment of a disabled employee will not necessarily amount to discrimination, where the employer can show that this treatment is a proportionate means of achieving legitimate aims. However, employers should ensure that the steps taken are indeed proportionate – if less discriminatory measures could be adopted, employers should be minded to go with these instead, to minimise the risk of a discrimination claim. In any event, dismissing employees for reasons relating to their disabilities will usually carry significant risk, and we would recommend employers obtain legal advice in advance.

If you require advice on your disabled employees or on the dismissal process, please get in touch at [email protected]