When sickness absence policies go wrong: key lessons from a recent ET case

A recent employment tribunal (ET) decision provides an important reminder to employers about managing long-term sickness absence where disability is involved. The case highlights the legal risks of strictly applying attendance policies, without considering adjustments to processes.

Complex medical history

In the case of Ms J Boswell v Beacon Multi-Academy Trust Ltd, the ET considered claims of unfair dismissal and disability discrimination brought by a teaching assistant with a complex medical history.

Ms Boswell had worked for the trust since 2015 and it was accepted that she performed her role well and there were no concerns about her capability. She had previously undergone treatment for thyroid cancer and suffered from hypocalcaemia. These are both long-term conditions requiring ongoing management. In late 2021 and early 2022, she experienced a further significant period of sickness absence linked to her disability.

Limited communication

During that absence, communication between Ms Boswell and the trust was limited and at times inconsistent. The trust escalated the matter to stage 1 without having any prior informal meeting. It progressed through its sickness absence procedure, issuing a warning and ultimately dismissing Ms Boswell on capability grounds in March 2022, due to the level of absence and the uncertainty regarding her return.

Ms Boswell brought claims for unfair dismissal, discrimination arising from disability, indirect disability discrimination, failure to make reasonable adjustments and harassment.

ET findings

The ET found that Ms Boswell was a disabled person under the Equality Act 2010 and upheld her claims of unfair dismissal, discrimination arising from disability, indirect discrimination and failure to make reasonable adjustments. The harassment claim was not upheld.

A key issue was the trust’s application of its sickness absence policy. The ET concluded that the trust treated Ms Boswell unfavourably because of something arising in consequence of her disability, that is, her disability-related absence, and that dismissal was not a proportionate means of achieving a legitimate aim.

Reasonable adjustments

In relation to the claim of failure to make reasonable adjustments, the ET also considered the proposed reasonable adjustments, which included:

• Discounting disability-related absence.
• Extending the timescales for the trigger points.
• Pursuing the informal procedures first including conducting exploratory interviews.
• Having discussions with Ms Boswell about the impact of her disability and the adjustments that could be made at all stages of the absence management process to reach a plan that supports Ms Boswell’s return.
• Not giving sanctions, such as a formal written warning, which added to her stress levels.
• Reviewing the situation and previous stages/sanctions in full when Ms Boswell was fit enough to attend the meetings and engage with the process.
• Instead of dismissing Ms Boswell, allowing her a phased return to work as per occupational health (OH) recommendations or a trial of flexible working.
• Offering Ms Boswell lighter duties, such as being taken off break and lunchtime duties, being allocated a fixed classroom/building or admin work or alternative roles as alternatives to dismissal.

The ET concluded that each of these steps, except the last one about lighter duties, was a reasonable step to take to avoid the disadvantage to Ms Boswell of being subjected to formal steps under the sickness absence policy and/or dismissal. The ET found that the claim for failure to comply with a duty to make reasonable adjustments was well-founded and succeeds.

Although the ET did not uphold the claim of harassment, it did describe aspects of the trust’s approach as ‘heavy-handed and harsh’.

Implications for schools and other employers

This case is a clear warning that sickness absence policies must not be applied rigidly where disability is involved. Even where staffing pressures are real and prolonged and absence is challenging, employers must demonstrate:

• Consideration of the individual employee’s medical circumstances.
• Active exploration of reasonable adjustments.
• Making decisions based on evidence and up-to-date medical advice.
• Proper balancing of operational needs against the impact on the disabled employee.

Failure to do so risks findings of both unfair dismissal and disability discrimination.

Key lessons

Key lessons from this case are that employers should:

• Ensure disability-related absence is carefully distinguished from general absence when applying triggers.
• Seek and rely on current OH advice before progressing to dismissal.
• Consider whether additional time for recovery is reasonable, particularly where a return is foreseeable.
• Document relevant information, including consideration of alternative roles, phased returns and adjusted duties.
• Maintain proactive, supportive welfare contact during long-term absence.
• Avoid rigid reliance on policy where flexibility may be legally required.

In summary, capability dismissals involving disabled staff require greater scrutiny, thoughtful adjustment and demonstrable proportionality. Policies provide structure, but fairness and compliance require judgment.

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