Finding in favour of the employer, and overturning the decision of the ET in General Dynamics v Carranza, the EAT made it clear that Employment Tribunals, when determining claims of discrimination for failure to make reasonable adjustments, must identify the particular “step” that is required for the purpose of Section 20 (3) of the Equality Act 2010. The duty on employers under Section 20 (3) reads as follows:-
“The first requirement is a requirement, where a provision, criterion or practice of [the employer] puts a disabled person as a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage”.
Mr Carranza had suffered from stomach adhesions; accepted as a disability. He received a final written warning in September 2011 following 206 days of absence over a three year period, mostly, but not all, caused by his disability. After three further months of sickness absence, not related to his disability, he was dismissed in December 2012.
The majority of the Employment Tribunal found that the company should have disregarded the final written warning (as it was issued following periods which included disability-related absences), and so found that there was a failure on the company’s part to make reasonable adjustments.
The EAT however concluded that the mental process of disregarding a previous warning is not a relevant “step” for the purpose of Section 20 (3). It also went even further and rejected that any such “adjustment” would have been reasonable in the circumstances.
The EAT said that this claim for failure to make reasonable adjustments should really have been put as a claim under Section 15 of the Equality Act; “discrimination arising from disability”. The EAT went on and said had the case been put that way, it would have been doomed to failure because the dismissal of the claimant following such lengthy absence was a proportionate means of achieving the legitimate aim of consistent attendance at work.
This case might embolden companies who are unsure how to tackle employees who are disabled and take lengthy and frequent periods of absence from work. However, because of the high risk of claims in this area, it remains essential for employers to be able to justify decisions to terminate disabled employees for poor attendance. Usually, this is done with reference to the adverse consequences and impact on the business and other colleagues caused by those absences.