Disability discrimination: are you looking beyond absence trigger points before dismissal?

We consider what other employers can learn from Ms S Caroline v ICTS (UK) Limited which highlights the importance of proper investigation and careful consideration of medical evidence.

Facts

Throughout 2023 and 2024, Ms Caroline, a security supervisor at Aberdeen Airport, had a number of periods of sickness absence, including absences following rotator cuff surgery, Covid-19, minor illnesses and shoulder pain. These absences triggered successive stages of the employer's attendance management policy, which operated through a series of absence ‘trigger points’. Employees reaching a trigger point could be subject to monitoring periods and, ultimately, dismissal. The policy also contained a separate Special Case Management process for employees whose medical condition affected their ability to perform their role.

Following her first four absences in 2023, Ms Caroline reached the first trigger point and was invited to a meeting and placed on a 12-month monitoring period. After further absences in early 2024, she reached the next trigger point and was invited to a second meeting and placed on a further monitoring period. 

After a 10-day absence for shoulder pain in 2024, the employer obtained an occupational health report, which recommended a phased return and lighter duties. The employer implemented those recommendations. This absence also triggered the final stage of the attendance management policy and Ms Caroline was invited to a ‘contractual review meeting’ at which dismissal was a possible outcome. During the meeting, she disclosed for the first time that she was experiencing anxiety and other mental health issues, had been attending counselling, and may have reactive arthritis. 

Following the meeting, the employer dismissed Ms Caroline. While acknowledging her comments about anxiety, the employer concluded that they did not explain the absences that had triggered the contractual review meeting. The employer also stated that it had taken the occupational health report into account and noted that the report found no underlying health condition.

Ms Caroline appealed but the employer upheld the original decision.

She subsequently brought a claim for unfair dismissal. 

Employment Tribunal 

The tribunal found that the dismissal was unfair. 

The judge concluded that the manager believed the attendance policy left him with no alternative to dismissal. Rather than considering whether dismissal was justified in the circumstances, he applied the procedure mechanically. The judge described this as a classic example of ‘tunnel vision’, finding that the manager failed to carry out a fair assessment of the employee's absences and the reasons behind them.  

The tribunal also found that the manager had misunderstood the occupational health report. The report did not state that Ms Caroline had no underlying health condition. Instead, it simply stated that she was unlikely to satisfy the test for disability under section 6 of the Equality Act 2010. 

Another important factor was the employer's failure to consider the practical impact of the absences. There was no evidence that Ms Caroline's absences had caused any disruption to the business or placed additional pressure on colleagues. 

The tribunal also identified shortcomings in the appeal process. The appeal manager failed to consider alternatives to dismissal, and the appeal outcome letter did not properly address all of the grounds of appeal and failed to provide clear reasons for rejecting them.

The tribunal therefore concluded that the employer had not acted reasonably and upheld Ms Caroline's unfair dismissal claim. 

Compensation

Ms Caroline was 60 years old at the time, had seven years' service and earned £37,883 per annum. 

She was awarded the following compensation: 

Basic award

The tribunal awarded a basic award of £7,350, calculated as 10.5 weeks' pay at the statutory weekly pay cap of £700 that applied at the time. 

Compensatory award: 

Ms Caroline received one month's pay in lieu of notice and secured alternative employment shortly after her dismissal, this meant she was without income for only 25 days. However, her new role paid less than her previous position. The tribunal therefore awarded her £17,656.64 for past loss of earnings. 

When assessing future losses, the tribunal considered both Ms Caroline's age and her history of sickness absence. However, it also noted that she had secured alternative employment relatively quickly and had been promoted twice. The tribunal concluded that she would likely obtain employment at a comparable salary within 18 months. She was awarded £19,289.88 for future loss of earnings. 

She was also awarded £500 for loss of statutory rights.

After grossing up for tax, the total compensatory award was £39,308.15, however as the statutory cap applied (52 weeks' gross pay), she was awarded a compensatory award of £37,779.21. 

In total, she was awarded £45,129.21. 

Key takeaways

This case demonstrates the danger of treating an absence management policy as a rigid process rather than a framework for making fair and balanced decisions. While attendance policies play an important role, you should avoid becoming so focused on procedural compliance that you lose sight of the individual's circumstances.  

The case also highlights the importance of properly investigating potential underlying health conditions. If an employee raises concerns about their health, you should explore those concerns thoroughly and consider whether further occupational health input or medical evidence is required before making decisions about their employment. You should also read occupational health reports carefully and ensure you understand the report's findings, limitations and recommendations.

You should also take time to assess the actual impact of an employee's absences, including any operational difficulties, disruption to service delivery, or additional pressure on colleagues. Where there is little evidence that the absence has an impact on the organisation, it may be more difficult to justify dismissal. 

Before deciding to dismiss, you should consider alternatives to dismissal. Depending on the circumstances, this may include providing additional support, making reasonable adjustments or exploring suitable alternative roles. 

It is also important to note that the amount of compensation awarded in this was case was limited by the statutory cap on the compensatory award which is currently capped at the lower of either 52 week's pay or £123,543. However, from 1 January 2027, this cap will be removed, meaning there will be no upper limit on the amount that can be awarded: successful claimants will recover their actual losses, which for high earners, can run into hundreds of thousands of pounds. 

You can find out more about this change, and the other reforms being introduced by the Employment Rights Act 2025 here. 

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