Sickness absence is an important issue for employers, but when disabled employees are involved it can cause confusion.  Responsible employers have always been very anxious not to take action against employees with disabilities even where they have been away from work for an inordinate amount of time.  This was because many employers feared risking a disability discrimination claim.

Recently, however, the House of Lords has decided a case (Malcolm – v – London Borough of Lewisham) which provides some assistance to employers.

The House of Lords decided that some previous disability related discrimination claims had been wrongly decided.  Formerly when a disabled employee was absent through sickness, they could compare themselves to a “non-disabled employee remaining in work” instead of a “non-disabled employee who was also absent for the same period”.  The law stated that where an employer treated the first type of comparator more favourably then they were guilty of discrimination.

The House of Lords has now reversed the situation by making the comparator employee “who is absent” it has become more difficult for employees.  The test laid down in the case of Malcolm confirms that if an employee was dismissed following long term absence due to disability, this is no longer necessarily disability related discrimination because the dismissal is because of the absence which is not a “disability”.

In response to this decision, the government has indicated it is not happy with this new position and it intends to change it by means of legislation.  There is already a proposal to do this under the equality bill which will probably become law later this year.

Simon Thomas, partner specialising in employment law comments “the decision of Malcolm will come as a relief for employers but this may be short lived, particularly if the government carry through their suggested intention to cover the position which has now arisen as a result of the Malcolm case.  Whatever the position, it is important that employers continue to apply their sickness absence policy consistently as this will help to avoid allegations of discrimination from disabled employees”.