Could a lack of consistency applied by management be deemed discrimination?

Posted in : Seamus Says - Employment Law Discussion on 6 July 2018
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered:

Q: We have staff wishing to use annual leave rather than be put on sick leave, more often to avoid trigger points in the absence policy. Some managers have approved this. Others have not. Is there a risk that the lack of consistency applied by management could be deemed discriminatory?

Scott: So we've dealt with it before, about whether it's sensible to let people take annual leave rather than sickness and the problems it can cause when it comes to assessments and redundancies and all kinds of things. But what about this angle on discrimination? Is it really an issue?

Seamus: Well, I think that consistency is important, and that you do need to be careful that if there are certain employees that are continually supported by management in terms of a way of managing their sickness absence yet is denied for another group of employees, you need to be careful there, particularly of discriminatory issues.

So for instance, if it was a male manager who was supportive and permitted his colleagues and his team that were all male to continually use this process, yet denied it for females, then you potentially have a discrimination claim there arising. So consistency is an important process to this, and what's good for the goose is good for the gander, as an old saying goes. And it's one that should be applied.

And outside of that, I think that where there is some discretion in terms of it, and you're not making differences across the board with other people, I don't have a difficulty with it in that sense. But for me, it just sits much easier and much better that we deal with it on a consistent basis and there's a clear policy and procedure in place, and that's what we stick to.

Scott: It probably just does come down to some managers are softer, if you like, or more engaged than others. But the bottom line is you end up with the jealousies between the departments and it causes issues further up the line if some say, "Oh, they get away with it and we don't," or "They get a benefit and we don't." But it's more that issue rather than discrimination, really.

Seamus: It would be very common to find that, certainly, where if you're a manager of a team that performs very well, and you maybe take a view that as long as the work gets done and you're not taking those days where you're really needed to where we have an important project to finish within a certain time frame, when a team works very well like that, it can be a positive and it can be a good thing to have a process where that happens.

But again, you always think of the fall-back position that somebody will start to abuse it. And where there's a precedent set-up of that yes, we can just take these holidays or if we can take a couple of days sick here and we can treat it as holidays, it won't be a problem. You're loosening the grip there and that leaves it open to abuse. I suppose that's the concern there in relation to it.

Additional Reading:

Should disciplinary action be taken to address sickness absence?

How to Manage Sickness Absence - The Do's and Don'ts


This article is correct at 06/07/2018

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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