It is common for employers to use trigger points in absence management policies to be prompted whether to take formal action. But is it safe to do so? The recent case of Ruiz Conejero v Ferroser Servicios Auxiliares SA, in the European Court of Justice, considered this point and whilst the facts of this case were peculiar to Spanish law, the principles set out in the judgment apply equally to the UK.
The facts and decision
The Spanish Workers’ Statute provides that a worker’s contract may be terminated if the intermittent absences amount to 20% of the worker’s working hours in two consecutive months, provided that the total absences of that worker in the previous 12 months amounted to 5% of working hours, or 25% of working hours in 4 consecutive months.
Snr Conjero suffered from degenerative joint disease. Between 2014 and 2015, he was absent from work on multiple occasions (some of which related to his disability) such that the thresholds for dismissal under the Worker’s Statute were met. His employer dismissed him. He claimed that his high level of absence was linked to his disability and therefore his dismissal amounted to unlawful disability discrimination.
The Spanish court sought clarification from the ECJ on whether its national law discriminated against disabled workers. Spain argued that the purpose of the Workers’ Statute was to combat absenteeism and to balance the interests of employers with the interests of the workforce.
The ECJ accepted that combating absenteeism could be a legitimate aim. However it also observed that the provisions had the potential to indirectly discriminate against disabled workers, as disabled workers were at greater risk of being dismissed, because they are more likely to have higher rates of absence than non-disabled workers. The key issue to be considered was whether the discriminatory provisions were a proportionate means of achieving a legitimate aim.
The ECJ referred this issue back to the Spanish court asking it to consider factors such as the financial cost to the employer as a result of absenteeism in the workplace, whether the provisions encourage recruitment and retention, the potential adverse effects on employees and whether reasonable adjustments could be made.
In the UK, trigger points are individual to each employer and found in absence management policies. Nevertheless, this case serves as a useful reminder that dismissing a worker for absence when set trigger points are reached has the potential to generate indirect disability discrimination issues.
This would also open up the question whether reasonable adjustments should or could have been made to eliminate or reduce the substantial disadvantage that the application of trigger points would otherwise cause a disabled worker.
It is important that before dismissing a worker on the basis of excessive sickness absence, the employer considers whether their absence policies or trigger points need to be adjusted to take into account the particular circumstances of the worker.