Long-term sick leave, short term absence policies and dismissals

The Employment Appeal Tribunal has ruled that it was not reasonable to require an NHS trust to make an adjustment to its absence management policy and exempt a disabled claimant. Gareth Edwards considers the implications.

In the case of Jennings v Barts and The London NHS Trust, the EAT upheld a tribunal's finding that the dismissal of a disabled employee on long-term sick leave was fair.

The claimant, Mr Jennings, had a long history of intermittent absence followed by long-term absence. The Trust had not been unreasonable in dismissing him, despite not following Occupational Health's recommendation of a phased return to work.

Jennings also claimed that his dismissal amounted to discrimination on the grounds of disability as the Trust should have made adjustments to its absence management policy.

The EAT upheld the tribunal's decision that exempting Jennings from having to comply with its short-term absence policy would not have been a reasonable adjustment. As a result Mr Jennings' claim failed.

Jennings had intermittent short-term absences because of ill health throughout his nine years of employment and was dismissed by the NHS Trust for poor attendance due to ill health.

He claimed that his absences were due to stress and the Trust robustly applied its short-term absence policy, which led to disciplinary proceedings against Jennings, who alleged that this put him under further stress. The Trust then breached its own policy by commencing its long-term absence procedure against Jennings without giving him notice.

Jennings was referred to Occupational Health (OH). The OH report diagnosed post-traumatic stress disorder and recommended a phased return to work in four to six weeks time.

However, during a final stage meeting which was held in accordance with the long-term absence procedure, Mr Jennings' manager took the decision to dismiss Jennings, citing departmental pressures, that his long- term absence was unfair to colleagues and Mr Jennings may never in fact return to work.

Jennings bought a claim for unfair dismissal and failure to make reasonable adjustments. The tribunal rejected both claims and the EAT dismissed the appeal for the reasons set out above.

Best practice

On the facts of this case the tribunal determined that it was not reasonable to require the employer to make adjustments to its internal policies and the claim failed.  However, it is important to judge each case on its facts and to keep an open mind when requests for adjustments are made by disabled employees.

It is fairly unusual for employers to dismiss if Occupational Health advice suggests that a return to work is imminent. However, this case shows that there are cases where dismissal can be fair even if a return to work is suggested in the not too distant future.

Again, each case needs to be assessed on its particular facts, taking into account the pressures on the employer and the affect on the employee.

Gareth Edwards is a partner and head of employment at Veale Wasbrough Vizards. He can be contacted on 0117 314 5220 or by This email address is being protected from spambots. You need JavaScript enabled to view it..