Reducing compensation for dismissal was not disability discrimination, finds EAT

The decision to reduce the amount of compensation owed to a disabled civil servant who was dismissed because of his absence record was not discriminatory, the Employment Appeal Tribunal has found.

Mr McAllister, who had anxiety and depression, was dismissed from his role at HMRC in 2018 because of is absence record and concerns about capability.

McAllister was signed off work by his GP for several periods between 2011 and 2018, and had on occasion suffered breakdowns at work.

In June 2018 he was advised he could be dismissed from the organisation if it decided it could no longer support his absences.

In August 2018, while he was off sick, he informed his line manager that his sick note had expired but he would not be returning to work as he was not fit to do so. His manager told him that the organisation could no longer sustain his absence and referred his case to an independent decision-maker to decide what steps should be taken next, however she decided to delay initiating this process.

In an absence meeting in September 2018, the claimant was unable to suggest any adjustments that would facilitate his return to work, other than changing departments. He was told he would have to apply for roles in other departments if he wished to change jobs.

McAllister’s line manager tried to keep in touch with him while he was off sick but he would not always answer her calls.

McAllister was declared unfit for work by his GP in October 2018, and the following month he was dismissed by HMRC. The organisation said his absence meant that other staff had to pick up his work, and that his absence impacted on productivity. It said that all reasonable adjustments had been exhausted and there was no business case to support a transfer to another team.

As he was dismissed on grounds of capability, McAllister was entitled to a payment under the Civil Service Compensation Scheme (CSCS), but this payment was reduced by 50% as he had not always cooperated with efforts to support his return to work. He had also been late during his phased return and had been disruptive when he had returned to work.

McAllister appealed against the decision to reduce his compensation and in March 2019 the Civil Service Appeal Board (CSAB) decided to increase his payment to 80% of the full award because it noted that his disability had not been taken into account.

McAllister took a claim for unfair dismissal to an employment tribunal. His claim was dismissed as the tribunal felt HMRC’s decision had been proportionate, as it needed to ensure staff were capable of demonstrating satisfactory attendance.

He took an appeal against the tribunal’s judgment to the Employment Appeal Tribunal, and HMRC pursued a cross-appeal against the tribunal’s finding that the payment made under the CSCS had amounted to unfavourable treatment.

The EAT allowed HMRC’s cross appeal and agreed that McAllister’s dismissal had been fair. It found the tribunal had been wrong to find that the decision of the appeal board did not constitute an act of discrimination, as that was not the claim before it.

It found it was not unfavourable for the claimant to have received the payment; if anything, it was more favourable as a non-disabled person would have been unlikely to have received a similar payment.

The EAT’s judgment says: “As the ET had found, the award had been made to the claimant because of his disability-related absences and his entitlement to be paid under the CSCS, by reason of his disability, could not be said to be unfavourable.

“That there had (in part) been a disability-related reduction in the calculation of the payment did not alter that, and the ET had erred in artificially separating out the method of calculation from the award itself. This was not a case where the claimant’s entitlement to the award in question arose other than by reason of his status as a disabled person.”

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