The prospect of dismissing an employee with a disability due to a poor sickness absence record would send most business owners into a blind panic. The good news is that there are proactive steps you can take to find a resolution. According to the Office for National Statistics, the UK’s sickness absence rate rose to 2.2% in 2021, the highest since 2010. Contributing factors are thought to include the end of the furlough scheme, staff returning to the workplace, the relaxation of social distancing rules and new Covid-19 variants. Rising sickness absence can put a strain on any business, particularly smaller concerns, and this is a situation I faced recently with one of my clients…
The company said that they had a female employee who had recently joined them, but she was on sick leave with probable post-traumatic stress disorder (PTSD). Normally, an employer could simply dismiss the person due to failure in the probationary period, but there was a problem… The employee suffered from a bi-polar disorder, meaning she was technically disabled and therefore protected under the Equality Act 2010. So how could the company go about the dismissing an employee with a disability without breaking the law?
What does the law say? The employee in question had a protected characteristic under the Equality Act 2010, which meant they could have had a claim for disability discrimination. The law states that 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.
The terms ‘substantial’ and ‘long-term’ sound slightly subjective, so let’s look at each one in turn… ‘Substantial’ simply means that someone takes much longer than normal to carry out a daily task like cooking a meal or going shopping. ‘Long-term’ determines that the disability has lasted, or is likely to last, for at least 12 months.
What steps could the employer take? Many disabilities are hidden, so companies need to consider disability even when an employee appears physically fit and has no declared impairments. Remember: employees cannot be forced to declare disabilities. When a disability is registered, employers are legally obliged to consider undertaking reasonable adjustments to a job role or workplace. These include any ‘provision, criteria or practice’ that would put an employee at a disadvantage. For example, installing access ramps for wheelchair users or assigning someone to desk work. Medical experts, such as occupational health advisors or psychiatrists, could help to determine the impact of a disability. The professional diagnosis could then be used to determine the reasonable adjustments.
If an employer has fully explored all these avenues and none are found to be viable, then dismissing an employee with a disability could be possible due to incapacity. If the decision is challenged, an employment tribunal will consider the following points:
- The nature of the illness
- The prospects of the employee returning to work
- The treatment of other employees in similar circumstances
- How the employer will cover the work of that employee
- The employee’s length of service
- Whether the employer considered other more suitable employment
- Whether the illness/injury resulted from the conduct of the employer.
Every case is different, so there might be other considerations, but tribunals will want to know whether it was reasonable to expect the employer to keep the employee’s job open?
Need advice? Dismissing an employee with a disability is never straightforward, so businesses should seek professional advice. JT HRConsultancy is an established HR services company based in Bedfordshire with clients across the UK. If you need help of advice on an employment issue, call me on 07715 026128 or email firstname.lastname@example.org