Case Review: McAllister v Commissioners for Her Majesty’s Revenue and Customs [2022] EAT 87

This case gives some comfort to employers choosing to dismiss an employee on long term sickness absence who are concerned about the risks of a disability discrimination claims.

The facts of this case were as follows:

Mr McAllister worked from HMRC from May 2011. He suffered from anxiety and depression and had a lot of lengthy periods of sickness absence some of which were not related to his mental health condition.  In the three years leading up to his dismissal, he had been absent from work for a total of 245 days on 23 different occasions. The most recent of those occasions was an absence of around 7 months, which was ongoing when he was dismissed in December 2018.

Mr McAllister had lost his claim for disability discrimination in the Employment Tribunal but appealed this decision. 

Ultimately the EAT  has upheld a finding that a decision to dismiss an employee on long term sickness absence was objectively justified and did not therefore amount to disability discrimination.  In forming this view, it was accepted that the employer had a legitimate aim of ensuring that staff were capable of demonstrating satisfactory attendance.  In assessing whether or not the dismissal was a proportionate means of achieving that aim, the tribunal accepted that the claimant’s absence had an impact on the employer particularly on management time and morale in the claimant’s team.

The case underlines the importance of having a capability management policy which carefully considers the impact of the employee’s absence on the business.


Posted on 01/31/2023 by Ortolan

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