Justification

Case 1: The facts

Nurse Mrs Dunsby had a disability based on gynaecological problems, migraines and depression. She was dismissed because of her high levels of sickness absence, but pointed out that two of her absences had been recorded as headaches when they were for migraine; if these had been discounted because they were a result of her disability, she would not have triggered the final stage of the employer’s absence procedure and would not have been dismissed.

A tribunal found that Dunsby had been unfairly dismissed for a reason related to her disability.

The ruling

The Employment Appeal Tribunal (EAT) pointed out that employers can dismiss employees who are absent on grounds of ill-health due to disability, although such a dismissal must be justified.

It is rare, the EAT said, for a sickness absence procedure to require disability-related absences to be disregarded, and an employer can take these absences into account as long as any resulting less favourable treatment is justifiable.

In Dunsby’s case, the EAT said it was not necessarily unreasonable to include the two migraine absences, particularly when they were the only absences for that reason in the entire absence record.

The case was remitted to a different tribunal for rehearing.

Royal Liverpool Children’s NHS Trust v Dunsby UKEAT/0426/05