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Every step you take, every move you make: employers must apply each stage of absence procedures on an individual basis

In deciding whether an employer could defend a discrimination claim the Employment Appeal Tribunal (the EAT) held that an employer’s actions, not just their policies, are what should be taken into account by the Tribunal when considering if the employer has successfully made out an objective justification defence.

The Facts

The Claimant was a police motorcyclist who was involved in a serious accident whilst on duty. Whilst his physical injuries healed fully, he developed post-traumatic stress disorder. This was so serious that for the purposes of the Equality Act 2010 (the EqA) he was considered disabled and was unable to return to work.

Eight months after the accident the police began procedures under their absence from work procedure. The procedure had 3 stages.  Starting the procedure was at the manager’s discretion and adjustments could be made to the procedure at each stage before a decision was made. The manager also had powers to postpone and adjourn stages.

The police went through stages 1 and 2 of their procedure, despite evidence that the Claimant was medically unfit to work and was distressed by the entire process.

The Claimant claimed that he had been discriminated against by virtue of his disability. The police accepted that there had been discrimination, but claimed that this discrimination could be objectively justified under EqA. The police claimed that as their attendance policies and procedures were objectively justifiable, their actions under these policies and procedures were also justifiable.

The EAT held that the EqA wording requires an alleged discriminator to show that the treatment of an employee is objectively justifiable. The Tribunal should begin by identifying the act or omission which is allegedly discriminatory, and ask if this could be justified.

The absence procedure steps were not compulsory under the police policies and procedures, so it was impossible to decide if the steps taken were justifiable simply by looking at the police’s policies and procedures.

Determining the aims of the employer is not difficult, and policies/procedures are useful for this. However, the Tribunal should also consider whether each step taken under those policies was proportionate to the employer’s justifiable aims.

What does this mean for you or your business?

Employers need to ensure their policies and procedures are in line with discrimination legislation.  Importantly, they also need to remind themselves that the implementation of those procedures is also in line with discrimination legislation.  This case makes it clear that absence management procedures and policies must be carefully followed, but also applied in a way which takes account of each individual going through the procedure.

What do you need to be doing now?

Make sure all staff likely to be implementing internal procedures or policies are up to date on the policies and how they should be applied.  Consider regular refresher training for staff implementing policies and procedures to ensure this awareness is maintained.

Take individual circumstances into account for each step of any internal procedures.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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