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HMRC employee loses claim after being dismissed for absence relating to disability

Makbool Javaid, Partner - Simons Muirhead Burton

In the case of Mr J Mcallister V Commisioners for Her Majesty’s Revenue And Customs 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.

He was dismissed in December 2018 as HMRC considered that his absences were impacting productivity and staff morale and all reasonable adjustments had been considered. As Mr McAllister was dismissed on grounds of capability, he was entitled to a payment under the Civil Service Compensation Scheme (CSCS) but this payment was reduced by 50% due to his conduct. He appealed this decision and on review, his payment was increased to 80%.

He then brought Tribunal claims including a claim for discrimination arising from disability in relation to his dismissal and the reduction of his CSCS payment. At the initial Tribunal, Mr McAllister’s claim for discrimination arising from disability in relation to his dismissal was unsuccessful; the Tribunal found that although he had been dismissed due to something arising in consequence of his disability (i.e., his absence from work), HMRC could objectively justify its decision as a proportionate means of achieving a legitimate aim (ensuring adequate attendance and fairly managing sickness absence).

The Tribunal did uphold his claim in relation to the decision to reduce the CSCS payment to 50% but found that the appeal decision to increase only to 80% was again, objectively justified.

Mr McAllister appealed both findings. HMRC cross-appealed the ET’s decision on the CSCS payment. The EAT considered an appeal by Mr McAllister and upheld the employment tribunal’s decision that although the claimant had been dismissed as a result of something arising as a consequence of his disability, this dismissal was a proportionate means of achieving a legitimate aim, namely, to ensure that staff were capable of demonstrating satisfactory attendance and a good standard of attendance.

Having found that the claimant’s absence had adversely impacted the respondent, the tribunal had then carried out the requisite balancing exercise, having due regard to the discriminatory impact of the dismissal on the claimant and had found the claimant’s absence had an adverse impact in terms of staff morale and management time and impacted upon the efficient use of resources.

The claimant had also been awarded a payment under the Civil Service Compensation Scheme (CSCS), which was limited to 50% of the sum that could have been awarded for reasons related to his disability. The claimant appealed to the Civil Service Appeal Board (CSAB) which increased the award to 80%. The tribunal found the reduction of 50% was disproportionate when a payment of 80% (as was allowed on appeal) would have been a less discriminatory measure.

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