Background:

The claimant was employed by the respondent department from January 2015 following an internal transfer within the Northern Ireland Civil Service.   From an early stage there were issues regarding the claimant’s timekeeping and attendance at work.  This led to his line manager approaching him on the issue with the claimant saying that there was an ‘unstated long-term medical problem’ which affected his sleep and did cause him to sleep through his alarm.

The claimant was referred to occupational health.  The report stated there were no adjustments required and the claimant was fit for work.   The same issues recurred though.  Occupational Health reported again this time stating there should be some flexibility around the claimant’s start-times and a desk near the window.  These measures were brought in but the problems persisted.  He was then given an informal warning in May 2017 followed by formal disciplinary action in June 2017.  The claimant, during the formal process, failed to attend an occupational health appointment as he had slept in.  In August 2017 the claimant slept-in and called his line manager to request the day off.  The claimant states the line manager was ‘dismissive’ and discussed the matter within earshot of his colleagues.  The line manager provided a significantly different set of events.  Following this dispute the claimant went off sick for 20 weeks.  Following his return the issues persisted. It culminated in the claimant sending an email saying that work was making him ill and he felt suicidal.

There was continued contact between the claimant and the respondent but in November 2018 the claimant asked the respondent to liaise with his solicitor. The claimant was then placed on the Disability Priority Pool in the respondent in January 2019. He was offered a no obligation interview for another post but he arrived late and stated he would be returning to his role after his grievance was resolved.  No grievance had been lodged. He was offered another role but he did not return to work.   He was then invited to a meeting to consider dismissal on the basis of the Inefficiency Sickness Absence policy.  He was informed of his dismissal on 20th June 2019.  It was shown in evidence that the claimant was suffering from mental health issues which was attributed to the use of cannabis.

Outcome:

The first issue for the Tribunal was to determine whether the claimant was ‘disabled’ within the meaning given in Disability Discrimination Act 1995.  The Tribunal referred to Section 3 relating to addictions stating that addition to alcohol, nicotine or any other substance is to be treated as not amounting to an impairment for the purposes of the Act. The Tribunal attributed the mental health issues to the claimant’s frequent recreational use of cannabis. As a result, it was found that the claimant did not establish that he was disabled at the material time.  As a result, the complaints of discrimination were dismissed.  On the claim of unfair dismissal, the Tribunal found that the respondent had scrupulously followed its policy on inefficiency sickness and had given considerable leeway to the claimant before making the decision to dismiss.  As a result, the process and decision to dismiss were fair.

Practical Guidance for Employers:

This demonstrates an area not seen all that often relating to disability, that being addictions.  On this basis, the legislation is clear in that addictions are not capable of leading to a disability.  As a result, the mental health issues being attributable to the drug use of the claimant as found by the Tribunal meant the case on disability discrimination was dismissed.  The case also demonstrates the continued importance in having policies and ensuring that they are followed throughout when considering disciplinary action.

NI Tribunal decisions are available on the OITFET website: http://www.employmenttribunalsni.co.uk/