General Dynamics Information Technology Ltd v Carranza [2014]

The claimant had been transferred to General Dynamics Information Technology Ltd from London Borough of Lambeth under a TUPE transfer. He was disabled under the definition contained within the GB Equality Act - when he was a boy he had an emergency operation to remove a ruptured appendix. Since that time he had suffered from stomach adhesions. Lambeth made adjustments at work for his condition, including extra breaks and time for medical appointments.

The Claimant had very substantial periods off work. There were informal meetings and discussions, followed by a written warning. Occupational Health advice was taken. Eventually Lambeth held a sickness panel hearing in September 2011. By this time the Claimant had been off for a total of 206 days (41.5 weeks) in three years. His absences were mainly related to adhesions, but there were also absences for a sprained ankle (six days), a viral illness (nine days), influenza (two days) and influenza again (five days). Following the sickness panel hearing, he was given a final written warning effective for 24 months.

Following the final written warning (which carefully set out the problems that the absence was causing the employer and the main points they had presented to the sickness absence hearing) the Claimant had two further periods of absence owing to his disability. These were relatively short, and the Respondent did not take any action against him by reason of those periods. It continued to provide him with adjustments and support at work. Then, however, the Claimant sustained a painful shoulder injury while rolling over in bed. After advice from OH and a formal hearing, the claimant was dismissed.

The tribunal held by majority that failure to disregard the final warning equalled a failure to apply a reasonable adjustment. The EAT has rejected this and has upheld the appeal by the employer:

"... it was legitimate for an employer to aim for consistent attendance at work; and the carefully considered final written warning was plainly a proportionate means of achieving that legitimate aim. The Employment Tribunal as a whole proceeded on that basis, and the majority found against the Respondent only because it had shown some mercy before the last lengthy period of absence. It was really unarguable that dismissal after that further very substantial absence was not a proportionate means of achieving a legitimate aim."

We'd recommend all employers with problems regarding employee absence read this decision:
http://bit.ly/1uDsc7Y