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Tag Archive

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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Workplace Banter

Much can be gained in having a relaxed work place environment where employees can talk and express opinions freely to each other however with workplace banter there is a very fine line which can easily be crossed and turn banter into unlawful bullying and harassment even if the purpose was not to cause offence.

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Menopause: How To Support Women In The Workplace

In this article we explore how menopause affects women in the workplace and what you can do to help shake the stigma.

What Is The Menopause?

The menopause is a natural part of the female life cycle. It usually happens between the ages of 45 and 55, as a woman’s oestrogen levels decline, and she stops having periods.

In the UK, the average age a woman reaches menopause is 51, but around one in 100 women experience the menopause before the age of 40.

The length of the menopause also varies. Symptoms typically last around four years, but around one in 10 women experience them for up to as much as 12 years.

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What Are The Statutory Sick Pay Guidelines?

Statutory sick pay (‘SSP’) is a universal payment all employers must pay, should their employees be signed off from work due to sickness. Some companies offer contractual sick pay – i.e. full pay for a period however more companies rely on government SSP guidelines.

If SSP applies, then the first question to be asked is – does the employee earn more than the lower earnings limit? The current rate for 2019 – 2020 is £118 per week. If the employee earns less than this then the employee would need to claim sick pay from the job centre. There is a SSP1 form online for the employer to complete. The employer does not pay anything during this period (unless contractual sick pay is available).

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Understanding A Fit Note

What Is A Fit Note?

fit note is a statement of fitness for work. It is given by a GP or hospital doctor stating that the employee is unfit for work or if temporary workplace adjustments are needed. 

A fit note will give details of the illness and recommended dates of how long to remain off work. 

It is important to note that the sick dates are guidance, this does not necessarily mean that the employee needs to wait until the expiry date to return back to work. Medical experts suggest employees should be able to return back to work when they are ready as it may help with their recovery period.

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What You Need To Know About Settlement Agreements

Settlement Agreement

Settlement agreements are legally binding contracts that are used to end an employment relationship between the employer and employee. They came into effect in 2013 and they are used to stop individuals bringing a claim to a court or an employment tribunal.

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