Disabled Employees Not Immune From Dismissal

Can a disabled employee be dismissed?

As an employment lawyer I am often asked by disabled clients if they can lawfully be dismissed.  It is a common misconception of many that they are immune from dismissal where they are unable to perform their duties because of their disability or a reason which arises from their disability. 

Fair procedure

The law operates to ensure that disabled workers are not treated less favourably.  It places an employer under a duty to take certain steps, failing which, a dismissal may be unfair and discriminatory.  However, assuming the employer does comply with its legal obligations and follows a fair procedure then any resulting dismissal for reason of ill health capability may be lawful.

A case example

This was demonstrated recently in the case of Henderson v Maximus UK Services Ltd [case number :80000365/2023] heard before the Edinburgh Employment Tribunal.

The facts of this case are not unique, but it is worthy of reporting simply because this case is representative of many enquiries that I receive.

Background

The Claimant was employed by Maximus UK Services Ltd, a Company who undertakes medical assessments on behalf of people claiming state benefits.  The Claimant was employed in the role of Service Delivery Lead, responsible for managing an administrative team of 9 and ensuring preservation of medical records.  

The Claimant was dismissed for ill health capability in February 2023 having been signed off work for more than four years by reason of her ill health.  It was conceded that the Claimant was a disabled person, as defined by the Equality Act by virtue of her various medical conditions. 

The Respondent had sought to manage the Claimant’s absence under its sickness absence management policy.  It maintained regular contact with the Claimant and sought advice from treating medical specialists and occupational health. The Claimant maintained the ‘regular contact’ had a negative effect on her recovery and caused anxiety.

Throughout the period of absence little change was reported in the Claimant’s medical condition.  Medical evidence and the Claimant recognised the Claimant’s inability to return to work and provide regular and efficient service, even on phased return and with the benefit of adjustments and in her substantive or some other post was unlikely in the foreseeable future. In short, it was agreed there was nothing more that could have been done that would have facilitated the Claimant’s return to work.

Throughout the period of the Claimant’s absence her income had been protected by an Income Protection Policy.  However after that was revoked, the Respondent proceeded to dismiss the Claimant on the grounds of ill health capability.

The Claimant pursued claims of direct and indirect discrimination on ground of disability.

The Tribunal when dismissing the claims noted that the Claimant was not dismissed fundamentally because she was disabled but because of her absence from work for more than four years with no prospect of return.  In those circumstances, and where the evidence supported that a non-disabled employee with the same length of absence would have been treated no less favourably, the Tribunal found this was a decision the Respondent was entitled to make.

In terms of the claim of indirect discrimination, the Tribunal found the provision, policy or practice [PCP] relied on by the Claimant when advancing her claims, namely their sickness absence policy – or as recognised by the Tribunal the Respondent’s application of that policy when deciding on the frequency of contact with the Claimant whilst off sick, could not be said to disadvantage the Claimant where regular contact was undertaken with a view to understanding the Claimant’s medical condition and providing support to facilitate her return to work.  In any event, the Tribunal noted the Respondent could justify the PCP given it’s legitimate aim, to understand the welfare and needs of the Claimant and to ensure service delivery.

Kate Lea, Head of Employment, Lawson West Solicitors, Leicester adds: 

"Four years is a very long time to support a disabled employee who continues to have no long-term ability to return to the workplace. The Respondent had been supportive and patient during this time period, but at the end of the day, if the Claimant was not able to guarantee a return to future work in any capacity, and positive alternative suggestions had been rejected or unworkable (the offer to negotiate a change of role, lighter tasks, or a role with less impact on overall health, like the ability to work from home, all these being impossible), then a Respondent will be justified in their need to dismiss the employee.

The Tribunal recognised the “extraordinary long time” without dismissal in this case.  Had the Claimant not had the benefit of income protection no doubt dismissal would have taken place sooner, and likely would still have been lawful.  However, all cases are fact sensitive and will be determined with reference to their own particular facts."

If your business is affected by an employee whose health condition or disability affects their long-term ability to work, then please Contact Us, our employment team can advise on the best course of action. 

 

 

 

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