4th April 2022

Is it possible to dismiss an employee who has a disability?

Earlier last month, an attendee of Ask the Expert asked, ‘is it possible to dismiss an employee who has a disability?’ and the answer served as a useful reminder of how not to discriminate against a disabled employee but also how to deal with ill-health dismissals more generally.

Potentially Fair Reason for Dismissal

Capability is a potentially fair reason for dismissal and whether a dismissal is fair will depend on the reasonableness of the employer’s decision in the particular circumstances and the procedure followed.

Firstly, an employer should establish the true medical position and consult with the employee before deciding whether to dismiss.  Secondly, the following factors are likely to be relevant when considering the reasonableness of the decision to dismiss, so should be considered carefully by an employer:

  • The nature of the employee’s illness.
  • The prospects of the employee returning to work and the likelihood of the recurrence of the illness.
  • The need for the employer to have someone doing the work.
  • The effect of the absences on the rest of the workforce.
  • The extent to which the employee was made aware of the position.
  • The employee’s length of service.

In cases of long-term absence, further investigation is more likely to be required and fairness will involve the following key elements:

  • Ascertaining the medical position.
  • Consulting with the employee.
  • Considering the availability of alternative employment.

Assuming a Tribunal is satisfied that an employer has followed a fair procedure, the final question will be whether the employer can be expected to keep the employee’s job open any longer, which will depend on a variety of factors, including the size of the organisation, the availability of temporary cover, and the administrative costs of keeping the employee on the books.

Disability Discrimination

Where the employee has a disability, there are extra steps an employer needs to take if they are to avoid discrimination claims.

For example, an employer must consider its duty to make reasonable adjustments if these are needed to remove barriers the employee faces in doing their job.  If the adjustments would remove the barrier and they are reasonable, the employer must make them. The question to ask is: would a reasonable adjustment remove the reason you are considering dismissing that employee?

Another example is a disabled employee being considered for dismissal because of their high sickness absence. The employer should establish whether the absences are connected to their disability. If they are and the employer dismissed the employee and cannot objectively justify that decision, this could be discrimination arising from disability. The answer to this may be for the employer to consider if they are any changes they could make which would be reasonable adjustments.

The short answer is it is possible to dismiss a disabled employee but advice should be taken first.

If you would like learn more about avoiding disability discrimination claims or would like help and advice about any other employment law related matter contact a member of the Blackadders Employment Team working in Aberdeen , Dundee, Edinburgh, Glasgow, Perth and across Scotland.  You can join us at the next Ask the Expert on Friday 8 April.

Donna Reynolds employment law partner

Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law
@EmpLawyerDonna

www.blackadders.co.uk

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