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.
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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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