The claimant was employed by the respondent, a manufacturing company, as an operator from 1995 until her dismissal on 18th December 2018.   The issues centred upon the claimant’s disciplinary warnings that had accrued as a result of poor attendance. The poor attendance was detailed from 2010 until the dismissal in 2018 with the final absence being 38 shifts for the reason of depression/sore knee.  The Occupational Health report outlined that there was a history of depression but that it could be controlled and that it would not have implications for performance at work.

The procedures that were followed by the respondent company were in line with their disciplinary procedure which detailed absenteeism as a minor misconduct issue and that any disability related absence would be discounted.   The respondent accepted that the claimant, by virtue of their depression, was classified as disabled under the legislation.  After the claimant received a final written warning following a series of absences in 2017 and early 2018, the claimant continued to be absent from work.   Some of these absences related to depression and low mood yet others were ‘trouble with knee’ and unauthorised leave where the claimant agreed in her evidence that she went on holiday without authorisation.  It was on foot of this that there was a disciplinary meeting arranged where the claimant was given an opportunity to put her case but there was a decision to dismiss.

In their evidence, the respondent outlined that short-term absences had a significant impact on the workplace considering that certain pieces of equipment may have to be shut down if there is nobody qualified to operate it for that shift.  The claimant claimed that the decision to dismiss amounted to unfair dismissal but also disability discrimination on the basis that reasonable adjustments were not given.

The Tribunal held that the reason for the dismissal was one of capability and that it was due to various health issues.  The extensive level of absences thus makes it a fair reason for the dismissal.  On the issue of disability discrimination, this was dismissed on the basis that the respondent was able to show that the absences relating to depression and low mood were discounted.   As a result, there were reasonable adjustments made and a non-disabled person with the same level of absence would have suffered the same consequence, that being dismissal.

Practical Lessons

The issue of absenteeism and taking action against an employee can be a delicate one, especially when there are reasons given for the absences.  In all but one of the absences for the claimant in this case there were health reasons cited.  That being said, if the absences are extensive and they are not related to a disability it still allows for capability to be a fair reason for a dismissal.  The extensive nature of the absenteeism in this case was seen through verbal and written warnings being given in each of the last 8 years of the claimant’s employment.   However, this case also shows that employers (like the respondent in this case) must be mindful of disabilities and discount absences relating to any disability.

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