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The Employment Appeal Tribunal (EAT) has upheld an employment tribunal's decision in McAllister v Revenue and Customs Commissioners that the dismissal of a disabled employee on long-term sickness absence did not constitute discrimination arising from a disability under section 15 of the Equality Act 2010 (EqA 2010).

The claimant worked for HMRC from May 2011 until his dismissal in December 2018 after HMRC concluded that his absence impacted on productivity and staff morale and that all reasonable adjustments had been exhausted. He suffered from anxiety and depression and was off work for long periods of time, although some of these absences were not related to his mental health issues. As he had been dismissed for capability reasons he was entitled to payment under the Civil Service Compensation Scheme (CSCS), but the amount paid to him was reduced by 50% because he had failed to answer calls, delayed returning relevant forms, displayed disruptive behaviour and turned up late during a phased return to work. He successfully appealed the reduction of his CSCS payment to the Civil Service Appeal Board (CSAB), which increased the award from 50% to 80%. The claimant also brought a claim for discrimination arising from disability before an employment tribunal in relation to both his dismissal and the reduction of the CSCS payment.

The tribunal rejected the claimant's claim for discrimination arising from disability. Although he had been dismissed due to his absence from work (which arose in consequence of his disability) HMRC could objectively justify the unfavourable treatment as a proportionate means of achieving its aim of ensuring that staff were capable of demonstrating satisfactory attendance and a good standard of attendance. The tribunal found that a CSCS payment of 50% was disproportionate when a payment of 80% of the sum could be awarded (as was allowed by the CSAB) and so here the claimant's claim for discrimination arising from disability was upheld.

The EAT dismissed the appeal and allowed HMRC's cross-appeal against the tribunal's decision to uphold the claim in relation to the calculation of the claimant's payment under the CSCS. It held that the tribunal had artificially separated out the entitlement to the award from the award's calculation. The payment had been made because of the claimant's dismissal due to disability-related absences. It was his underlying health condition, arising from his disability, that gave rise to his entitlement under the CSCS. The relevant treatment, namely being treated as entitled to a payment under the CSCS was not unfavourable treatment and the fact that there had been a disability-related reduction in the calculation of the payment did not alter that.

Take note: The decision in McAllister demonstrates that where a claim for discrimination arising from a disability is concerned it's only necessary to demonstrate that the unfavourable treatment is because of something arising in consequence of the disability. There is no need to compare the disabled person's treatment with that of another person. Here it was the claimant's poor attendance record and the inability of reasonable adjustments to get him back to work effectively that was the something arising from his disability. The entitlement under the CSCS was a benefit to which the claimant would not have been entitled had he not been disabled and so there had been no unfavourable treatment.