The recent Employment Appeal Tribunal case of Buchanan v The Commissioner of Police has provided useful guidance to employers in relation to how they manage long-term sickness absences

Employees on long-term sick leave can present difficulties for employers.  On the one hand, employers are not obliged to employ staff indefinitely who are not well enough to work.   On the other hand, employers do have to follow a fair process in deciding whether such staff can work in alternative roles or whether they should be dismissed.  Some employers may have a policy that sets out the process to be followed in relation to staff on long-term sick leave.  Whether there is a policy or not, it is important that the process adopted by the employer is not in any way discriminatory.


Under the Equality Act 2010 (EqA 2010), employers are prohibited from treating employees unfavourably because of something arising in consequence of their disability.  Such treatment is permissible, however, if the employer can objectively justify the treatment by showing that it is a proportionate means (i.e. it goes no further than is reasonably necessary) of achieving a legitimate aim, for example to staff your business properly in order to fulfil orders and generate a profit.

The case

Mr Buchanan was a police officer.  He was diagnosed with post-traumatic stress disorder (PTSD), which is a disability under the EqA 2010, after being involved in a motorbike accident while responding to an emergency call.  His employer attempted to manage his sickness absence by instigating its ‘Unsatisfactory Performance Procedure’ (UPP) following Mr Buchanan being signed off for eight months.

Under the UPP, Mr Buchanan was issued with ‘improvement notices’ which specified dates by when he was expected to return to work.  Unfortunately (and as known by the police) Mr Buchanan was unable to comply due to his medical condition.  Worse still, the notices had the effect of making Mr Buchanan feel anxious and pressured which did little to help his PTSD.  Ultimately, though not relevant to the point in hand, Mr Buchanan retired on ill-health grounds.

Mr Buchanan issued a claim in the Employment Tribunal alleging that he had been treated unfavourably because of something arising in consequence of his disability.  The tribunal held that Mr Buchanan had suffered unfavourable treatment, and that the treatment complained of was because of something arising from his disability.  Unfortunately for Mr Buchanan, it also found that the UPP itself was a proportionate means of achieving a legitimate aim.  Accordingly, the Tribunal dismissed Mr Buchanan’s claim and Mr Buchanan appealed to the Employment Appeal Tribunal arguing that each act under the UPP had to be objectively justified, as opposed to simply the policy itself.

The appeal

The EAT agreed with Mr Buchanan and held that the objective justification test should be applied to each instance of unfavourable treatment.  Whilst the management of long-term sickness absence in itself is likely to constitute a legitimate interest, the police still had a duty to apply its UPP in a way that could be objectively justified.  It was not good enough to simply prove that the UPP was a proportionate means of achieving a legitimate aim; each act under the UPP had to be objectively justified. The EAT has passed the case back to the tribunal to consider each act taken and whether it can be justified.

Be flexible

This judgment serves as a useful reminder that employers should maintain a flexible approach when it comes to the tricky issue of long-term sickness management.  In particular, employers should carefully consider each stage of any sickness absence policy to ensure that there isn’t a less detrimental way of managing an employee’s long term absence.  Each case will be different.  An employer might be required to depart from its own policy if there is a risk that the employee may find any particular stage too stressful.  If the process can be adjusted in any way to lessen the impact on the employee it would in most cases be sensible to do just that.  Not only will this support positive employee relations; importantly, it will also minimise the risk of any discrimination claims.