Now is a time of transition as employees return to the workplace either on a hybrid basis or for all their working time. ‘Employers need to keep in mind the impact of this shift on any employees’ disabilities,’ says Samira Cakali, Managing Director and Solicitor Advocate at SCE Solicitors.
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Tag Archive Covid-19DisabilityDisability DiscriminationDiscrimination arising from disabilityEmployeeEmployeesEmployeremployment claimsEmployment LawHealthHybrid WorkingInvisible DisabilitiesworkingWorkplace
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May3 tips to managing difficult employees without it affecting your own mental health
As mental health awareness week draws to an end for another year, I thought I would put thoughts to paper in respect of something, I personally feel, gets left out of this important discussion – the mental health of managers. So here at my thoughts.
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DecDismissing An Employee With A Disability
Work related stress translating to long term absence is growing and the impact to business’ is significant. So, when it comes to dismissing an employee due to ill health it can be tricky if it is to do with a potential protected characteristic in accordance with the Equality Act 2010.
Dismissal For Sickness
Case Study
The company is not happy with the performance of an employee who has only 9 months service and in addition has been off sick with stress and depression. The company wishes to dismiss the employee, as they have less than 2 years’ service and the employee cannot bring an unfair dismissal claim. Is the company ok to dismiss?
The answer is not a clear yes or no, the employee may have a protected characteristic under the Equality Act 2010, and they may have a claim for disability discrimination.
Equality Act 2010
So, how is a disability defined?
According to the Equality Act, a person has a disability if:
- they have a physical or mental impairment
- the impairment has a substantial and long-term adverse effect on their ability to perform normal day-to-day activities
What does ‘substantial’, ‘long term’ and ‘day to day’ mean?
- ‘substantial’ means more than minor or trivial, for example it takes much longer than it usually would to complete a daily task like getting dressed
- ‘long-term’ means that the effect of the impairment has lasted or is likely to last for at least twelve months
- ‘normal day-to-day activities’ include everyday things like eating, washing, walking and going shopping
There has been a recent tribunal case, Parnaby v Leicester City Council where an employee was impaired by depression caused by work related stress. The tribunal ruled that he did not fit the definition of a disability. They said that his condition didn’t last over 12 months. The Claimant appealed and the EAT overruled the decision and said the tribunal should have considered whether the impairment was likely to last 12 months or whether it might recur in the future. The tribunal made the assumption that removing the work-related stress by dismissing the employee, this would remove the impairment.
This judgement helps to clarify that the whole definition of a disability would have to be considered when making decisions on an employee’s employment.
Termination Of Contract
So, when considering a termination of contract for an employee who has a disability, employers should ask the following clarifying questions:
- Does the person have a physical or mental impairment?
- Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?
- Is that effect substantial?
- Is that effect long-term and the person would be affected in the future?
Medical practitioners can help you answer some of these questions, and if there is any doubt that the condition is a true disability, then other alternatives to dismissal would need to be considered. For example, reasonable adjustments or alternative employment. If none of these options are viable, then termination could be possible under incapacity.
The process however is not straightforward, and we would encourage you to seek advice prior to taking action in such cases.
If you need help and advice managing an employee who has a disability, please do not hesitate to contact us on 0113 350 4030 or at hello@scesolicitors.co.uk.
If you have enjoyed this article and would like to be kept updated on HR and Employment Law issues please subscribe to our monthly newsletter.
SCE Solicitors is a boutique employment law and litigation practice based in Leeds which advises clients nationwide. Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.
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Jan3 Things We Learnt In Law This Week (31 January 2019)
Employee Was Not Unfairly Dismissed Over Offensive Facebook Posts About Director
An employee’s “extremely derogatory” social media posts about his boss’s generosity in awarding a Christmas bonus did not justify the employer’s failure to give him notice pay when he was dismissed, the Manchester Employment Tribunal has ruled.
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Jan3 Things We Learnt In Law This Week (17 January 2019)
Disabled Shop Worker Wins Tribunal Award From M&S Over Lift Key
An Employment Tribunal (ET) has made an award of £1,000 against Marks and Spencer after a delay in providing a disabled shop worker with a lift key to allow him to reach the toilets more easily.
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Dec3 Things We Learnt In Law This Week (27 December 2018)
Does an Employee Have a Right to a Statement of Employment Particulars When Employed for Less Than 2 Months?
Yes, if they have worked continuously for at least 1 month, held the EAT in Stefanko and others v Maritime Hotel Ltd.
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OctOur All New 5 Step Guide to Reducing Sickness Absence in the Workplace and Preventing Discrimination Claims
Managing sickness absence is a pivotal part of the successful running of your business. Letting sickness absence get out of control can mean that be business is not as productive, or efficient, as it could be. However, mismanagement of sickness absence can lead to a disability discrimination claim which could cost your business thousands of pounds.
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AugWhat “Positive Action” is Permitted Under Discrimination Legislation?
A key difference between positive action and positive discrimination is that positive action is lawful, provided that the employer meets the conditions set out in section 158 or 159 of the Equality Act 2010, whereas positive discrimination, generally, is not lawful.
In the context of recruitment, unlawful positive discrimination would be where an employer recruits a person because he or she has a relevant protected characteristic rather than because he or she is the best candidate. It is also unlawful, for example, to set quotas to recruit or promote a specific number or proportion of people with a particular protected characteristic. However, there are circumstances in which it is lawful to require a job applicant to have a particular protected characteristic, for example where an occupational requirement applies.
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MarLEGAL UPDATE: Fit for Work Assessments to End
The Government announced in Improving lives: the future of work, health and disability that the Fit for Work assessment scheme is to end on 31 March 2018 following low referral rates.
The Fit for Work referral service introduced in 2014 was set up to help employers manage sickness in the workplace and provided free access to occupational health professionals for people who are off work for four weeks or more. Once an employee reached, or was expected to reach, four weeks of sickness absence they could be referred to Fit for Work by their GP or their employer. However, the scheme has had poor take-up and after months of uncertainty over its future, the Government is set to pull the plug on the scheme at the end of the month.
The abolishment of the Fit for Work scheme came after the Government released its ambitious proposals to get one million more disabled people into work over the next 10 years.
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JunReasonable adjustments for disabled job applicants
As lawyers, we know employment law can be a minefield for many employers out there. The recruitment process is the start of any employment relationship and comes with its own obstacles as you must ensure any recruitment process is fair and objective. Employers can expose themselves to risks of claims from job applicants if the recruitment process is discriminatory in any way.
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