Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Background:
The claimant was a communications officer with the respondent. In this role, she dealt with emergency calls made by the public through the ‘999/101 system’. The claimant was dismissed in November 2019 as a result of attendance levels being unacceptable. There were 17 occurrences of sickness absence with 100 working days being missed between February 2017 and April 2019. The claimant alleged that they were due to a disability, that being fibromyalgia. She stated that this made the decision was discriminatory based upon disability as well as making the dismissal unfair.
Outcome:
The Tribunal, at first instance, dismissed the claim. They held that there was no medical evidence produced by the claimant demonstrating that she had fibromyalgia. She did point to a falls she had suffered and cited that it was a trigger for the fibromyalgia. This was of insufficient basis to fall into the statutory definition for a disability. There was only a short note from a GP stating that it could have been fibromyalgia in July 2019 and this had some crucial factual inaccuracies.
The claimant appealed to the EAT. The EAT held that the claimant tying her case to fibromyalgia was not an accident but the actual nature of the absences were varied. This related to flu, digestive disorders, psychological disorders as well as various injuries suffered by falls. The respondent stated it was a legal strategy seeking to link these together under the umbrella of fibromyalgia. This strategy was rejected by the Tribunal and also rejected by the EAT. There was no evidential basis to link the disparate and potentially short-term symptoms relating to the absences with a long-term, substantial impairment. Accordingly, the appeal was dismissed.
Practical Guidance for Employers:
An interesting case where the Tribunal and the EAT did an analysis between the reason for the absences and the disability then claimed by the claimant. It was found that there was insufficient evidence to link those disparate matters into a long-term, substantial impairment. For employers it is important to ensure that the reason for absence is correctly noted and retained as it may have to be used in evidence if absenteeism continues to be an issue.
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