When is it fair to dismiss an employee for long-term ill health due to a disability?
In Monmouthshire County Council v Harris, the EAT overturned the Tribunal’s ruling on an unfair dismissal and disability discrimination claim. Employment Law solicitor, Nathalie Stewart, explains what this recent decision means for employers.
Ms Harris was disabled under the Equality Act 2010. As a reasonable adjustment, she was allowed to work from home for part of the week.
For various reasons this was withdrawn and she was required to work fully in the office. Ms Harris then took 6 months off on sick leave.
The employer dismissed on the grounds of incapability due to ill health. They got medical evidence first, which provided an ‘uncertain and pessimistic prognosis’.
She issued proceedings for unfair dismissal, discrimination arising from a disability and failure to make reasonable adjustments.
The Employment Tribunal initially said that there had been a failure to consider reasonable adjustments before dismissing her and that the dismissal was discriminatory due to it arising from her absences caused by a disability.
At first instance, they awarded her over £200,000 in compensation.
The Employment Appeal Tribunal (EAT) overturned this.
The EAT stated that it was not discrimination arising from a disability (under s15 of the Equality Act 2010) if it was a proportionate means of achieving a legitimate aim.
Ensuring good attendance can be a justification.
It would expect to see a proper capability procedure applied. But in the absence of improvement, a dismissal doesn’t necessarily amount to discrimination.
The EAT also found that there were no reasonable adjustments that could have been made at the time of dismissal.
What this means for you
This case demonstrates that an employee who has substantial absence arising from a disability is not protected from dismissal simply because of the disability.
Employers are entitled to manage attendance and take steps when attendance is unacceptable.
Reasonable adjustments must be considered for a disabled employee, but it doesn’t follow that any adjustment can be considered reasonable.
With reasonable adjustments, an employer considers:
- Whether the adjustment makes good the disadvantage
- Whether the adjustment is reasonable in light of financial resources
- Whether the adjustment is reasonable in light of the disruption it has on the employer’s activities
In this case, working from home may have initially been a reasonable adjustment but was not at the time of dismissal.
Whether an adjustment is reasonable can vary from employer to employer. So it must be considered in light of the above three factors, and not assumed to be standard across the board.
Lengthy or repeated absence because of disability is a minefield.
To protect against these types of claims and ensure best practice, you need to address the following questions first:
- Is there an absence management policy or procedure? And is it justified and applied equally to all employees?
- Has the amount of absence triggered the incapability procedure for ill health?
- Have all reasonable adjustments been considered to allow the employee to continue in their work? Have reasonable adjustments been considered in respect of the absence itself, i.e. by discounting or disregarding?
- Before dismissing, was the employee given an opportunity and time to improve? Were they made aware of the risks of not improving? Had they been consulted fully about the absence/possible return to work? And was proper medical evidence considered?
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Please call Nathalie Stewart on 01482 324252.
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