Employment Law Case Update: Sickness Absence Dismissal

Following a fair procedure is one of the fundamental rules within Employment Law, particularly following a fair procedure that is detailed in your own policies.  Our Employment Law team review the case of Mr V Rumbold v Jaguar Land Rover and what happens when an employer didn't do this and ended up in Employment Tribunal.

Mr Rumbold was employed by Jaguar Land Rover from February 1999 until his dismissal in December 2018. Over the course of his employment, Mr Rumbold had been absent for over 800 shifts, costing the company over £95,000 in sick pay. Until 2018, Mr Rumbold had not been told his absences were a problem and he had not been subject to any formal steps under the company’s Attendance Management Procedure (AMP).

In 2018 Mr Rumbold was diagnosed with avascular necrosis disease (AVN), a disease which caused chronic pain and deterioration in his hip.  He was absent from work for about five months due to pain. When he returned to work his condition restricted the types of work he was able to do. He was consequently placed on trials for other roles as part of the company’s Restricted Worker Procedure (RWP). One such trial was for the role of “sealer”. This trial was not successful. He had to walk around the car four times without his walking stick and after the first day he was in “excruciating pain” so he went to see his doctor the next day. His doctor provided a fit note which reasserted Mr Rumbold’s need for adjustments such as having a walking aid and available seating.

In December 2018 Mr Rumbold was taken through an Employment Review due in part to his high level of absences. Mr Carter, the manager who led the meeting, focused on Mr Rumbold’s absences throughout his entire career and their cost to the company. He was also concerned that Mr Rumbold’s planned hip operation would result in a further 12 weeks absence for recovery. He said to Mr Rumbold, “Every person and every penny makes a difference. You were missing or late for 11 [Occupational Health] appointments. I deem that as unacceptable….Level of absence last 18 years costing around 100K… We have the potential for future absence following your operation. I believe this to be unacceptable to the organisation.” He made the decision to dismiss Mr Rumbold “on grounds of conduct and capability” as demonstrated in Mr Rumbold’s attendance record.

Mr Rumbold unsuccessfully appealed his dismissal before bringing claims of unfair dismissal and disability discrimination against Jaguar Land Rover.

Mr Rumbold’s claim for unfair dismissal was successful because the Employment Tribunal (ET) found that in making the decision to dismiss, the company had “failed to follow its own procedures,” a course of action which was “wholly unreasonable and unfair.”

The AMP included several steps that an employee should be taken through before dismissal would be considered but the company failed to follow these steps and proceeded straight to an Employment Review before it was possible to determine whether Mr Rumbold could resume a role with the proper adjustments. Therefore, the dismissal was not within the “range of reasonable responses” available at that stage in the procedure, and the dismissal was unfair.

Mr Rumbold was also successful in his claim for discrimination arising from a failure to make reasonable adjustments. The ET found that by restricting the use of a walking stick and failing to provide suitable seating, the company put Mr Rumbold at a disadvantage compared to other employees. It gave insufficient consideration to how Mr Rumbold’s impairment could have been reduced by providing a seat at his work station. Consequently, the ET found that Jaguar Land Rover discriminated against Mr Rumbold by failing to provide reasonable adjustments. 

This case highlights for employers the importance of following their own procedures, especially when considering dismissing an employee. It ensures the employee is treated fairly and, where the reason for dismissal is related to capability, warns the employee that they are at risk of dismissal. Where the employee is disabled, taking the time to go through the full attendance management procedure can also help ensure all possible reasonable adjustments are given adequate consideration. An employer who fails to follow proper procedures before dismissing an employee risks the dismissal being ruled unfair by a tribunal.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.