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Tag Archive

Addressing Discrimination: bringing change to the workplace

In the wake of recent events, there is increased momentum in addressing racial inequalities at work. Whilst this is extremely important, businesses must not forget to take account of employment law and although positive discrimination is prohibited, positive action is lawful and there are plenty employers can do to tackle inequality of all kinds and particularly racial equality.

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Dismissing 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.

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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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Tips For Tackling Long-Term Sickness Absence

Dealing appropriately with employees on long-term sickness absence from the outset can help achieve an earlier return to work. Where a return is ultimately not possible, it will reduce the prospect of a dispute escalating. These are our top three tips for tackling long-term sickness absence:

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A Guide For Employers: Family Friendly Working

From shared parental leave to part-time working, in this guide we explore five things all employers need to know about family friendly working.

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3 Things We Learnt In Law This Week (7 February 2019)

Consultation On Extending Redundancy Protection For New Parents

A recent study by the Department for Business, Energy and Industrial Strategy found that one in nine returning to work after maternity leave were fired, made redundant, or treated in a manner which forced them to leave their job. The study also found that as many as 54,000 women per year are losing their jobs as a result of their pregnancy or maternity leave.

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3 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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3 Things We Learnt In Law This Week (13 December 2018)

Is veganism a “philosophical belief” that should be protected by law?

An employment tribunal is being asked to decide whether veganism is a “philosophical belief” and therefore, should be protected by law.

The landmark case, which is listed for March 2019, will help determine whether veganism is a “philosophical belief” and therefore, should be legally protected.

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Our 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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SCE Solicitors Celebrates Manchester Gay Pride

Having lived in Manchester for a long time, I know that Manchester Pride is a huge event for me and the rest of the Manchester LGBT community.  So, to celebrate the upcoming festivities we here at SCE Solicitors celebrated our own diversity with a ‘pride party’. We pride ourselves on being a diverse team, despite our size, and we encourage others to do the same.

Having a diverse workforce is a commercial no-brainer. It allows businesses to use people’s different backgrounds, knowledge, skills and expertise to create an environment where employees can learn from each other and produce innovative ideas. Employees will also feel valued and supported, which increases their productivity. Workplace diversity builds a good reputation for any business. Being known for being fair and diverse is likely to attract a wider pool of applicants for any vacancies and will attract loyalty from the socially conscious.

It also encourages a mutual respect for others, which is vital to protect against claims of discrimination. The Equality Act 2010 protects those who have one or more of the 9 protected characteristics from discrimination. The protected characteristics are; age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Even if you, as an employer, do not yourself discriminate against the protected employee, you can still be held liable for an employee’s conduct if you cannot show that you have done everything in your power to prevent such behaviour. Therefore, it is imperative that employers have effective Equal Opportunities and Diversity policies, staff and management training, and a zero-tolerance approach when dealing with acts of discrimination.

If you are an employer or an individual and you have questions about diversity and discrimination in the workplace contact me at eve.king@scesolicitors.co.uk or call 01133 50 40 30.

Manchester Gay Pride begins today, Friday 24 August 2018, and ends on Monday 27 August 2018. 


SCE Solicitors is a boutique employment law 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.

If you enjoyed this article and would like to be kept updated on HR and Employment Law issues, please subscribe to our monthly newsletter