J Henderson v Maximum UK Services Limited

An employee who had been off sick for more than four years had lost her disability discrimination claim. From 16 October 2018 until her dismissal in 2023, the Claimant had been signed off work due to illness which was causing her symptoms of insomnia and forgetfulness.

Throughout her period of absence, the employer conducted Occupation Health and welfare meetings with the Claimant to better understand her condition and explore the possibility of her returning to work. The outcome of these meetings was that she remained unfit for work due to ongoing symptoms of her conditions.

In 2022, her sick pay was cut by insurers and in 2023, her contract was terminated on the grounds of ill health. The Claimant brought a direct discrimination claim against her employer, namely that she was dismissed because of her disability.

Findings from the Tribunal:

For the claim to be successful, the Tribunal would have needed to make a finding that the Claimant was treated less favourably than a real or hypothetical comparator. The Tribunal found that the Respondent allowed the Claimant to remain in employment for an ‘extraordinarily long time’. The Tribunal could not find that the Claimant had been dismissed due to her disability, instead, they found that it was due to there being no real prospects to return to work and her period of absence being a total of 4 years.

When dealing with long-term sickness absence, employers must ensure that they have an up-to-date Sickness Absence Policy and remember to check on the employees at regular intervals to understand what they can do as a business to support their attendance. Most importantly, employers should ensure that they clearly document the reason behind dismissing an employee, should it come to it. If you have any questions, do not hesitate to get in touch!