30th May 2022

Learning an employee has a disability after their dismissal: What do I do?

At May’s Ask the Expert, we were asked how to deal with an employee who was dismissed after 7 weeks’ employment for going AWOL and subsequently got in touch to explain they had been diagnosed with epilepsy. The role required the employee to drive a van.

The starting point with any dismissal involving an employee with short service (less than two years) is to consider the reason why and how. Identifying the reason is important because there is a long list of grounds upon which an employee can claim automatically unfair dismissal (‘ordinary’ unfair dismissal requires 2 years’ service), for example, any reason connected to pregnancy and maternity, for asserting statutory rights or for making a protected disclosure (whistleblowing).  Once an automatically unfair reason for dismissal has been established, the decision to dismiss can’t be justified. If an employee is dismissed for a reason related to a protected characteristic, for example disability, this could amount to unlawful discrimination. How you dismiss is just as important because a failure to follow a contractual disciplinary policy or dismissal procedure may be a breach of contract.

Let’s now assume that the employee’s epilepsy qualifies as a disability under the Equality Act and the reason why the employee is making the employer aware of their disability is because they want their job back. The employer is now ‘on notice’ of the disability. What should it do? The simple answer is, don’t ignore this new information if it wishes to avoid a potential disability discrimination claim.

Take steps to get more information: ask the employee in the first instance and potentially follow up with a request for a medical report from their GP or Occupational Health. Armed with this information, now ask yourself whether this person was dismissed because of their disability, because a practice, criterions or provision was applied (as it would be to any employee), which has a substantial adverse effect on those with epilepsy or because of something arising from it e.g. the employee was admitted to hospital after a seizure and couldn’t come to work or comply with the absence reporting procedures.  If you can satisfy yourself there is no link, of any kind, between the dismissal and the disability, the original decision may stand. If there is a link (or could be), you need to consider overturning the decision. Legal advice should be sought at this stage because every case is different.

However, there then remains the issue of whether this person can perform the driving part of their role (with or without adjustments) if reinstated.

Refusing employment to, or dismissing or refusing to reinstate, a person with a disability can expose an employer to a successful disability discrimination claim, most likely discriminating arising from disability e.g. I cannot drive because of my condition and  a failure to make reasonable adjustments. There is no objective justification defence available under the Equality Act 2010 in respect of a failure to make reasonable adjustments. The proposed adjustments are either reasonable or they’re not.  For example, is it reasonable to remove the driving duties and allow the person to perform the other duties of the role or allocate them different duties? Or is it reasonable to offer a different role all together?

There is no duty to make all possible adjustments, just reasonable adjustments. The question of reasonableness will depend on many factors such as: the size of the business, the extent of the severity of the employee’s disability, how practical the adjustment is and how much the adjustment will cost among other things. In relation to cost, it should never be the sole factor but it certainly can be in the mix if the cost of the adjustment perhaps outweighs the benefit it brings. Again, legal advice should be sought.

If you would like advice about any employment law related matter please contact Blackadders Employment Team operating across Aberdeen, Dundee, Edinburgh, Glasgow and Perth. You can also join Donna Reynolds and Blair Duncan at their next Ask the Expert. Details can be found here.

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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