Dismissal and ill health myths
We manage ill health for Employers and ensure that we offer the best outcomes. It can be a misconception that dismissal due to ill health is automatically unfair or always unlawful.
In our article today, we dispel this myth, an Employee can be both fairly and lawfully dismissed, so long as you the Employer has a valid reason, made any reasonable adjustments (where applicable), and that as an Employer you have followed a fair procedure.
Complaints and tribunal claims do occur for unfair dismissal and unlawful discrimination, this happens when the process has been handled incorrectly, and payments and entitlements are incorrect.
Let’s take a look at how to get it right.
As an Employer can I dismiss an Employee due to ill health?
In the first instance to be able to fairly dismiss an Employee, you should be able to show that you have a valid reason for so doing and of course that you have acted reasonably, considering all of the circumstances, we say this as in many cases not ‘all circumstances’ are considered.
There are various valid reasons for dismissing an Employee (in UK law), this includes where the reason relates to the capability of the Employee for performing work of the kind that they were employed to do.
In this circumstance, it is a valid reason to dismiss an Employee if they are incapable of doing their job to the required standard by reason of ill health or where they are absent from work on long-term sick. In this situation as the Employer, you would otherwise be paying someone for a job that is either being performed inadequately or not being performed at all.
At this stage it may all sound relatively straightforward, however, as the Employer you need to consider whether or not you can justify dismissal due to ill health, this will depend on all the facts you have and the steps you have taken, in addition, the nature of the Employees illness, the likelihood of additional time off work, previous instances, and length of previous absences, length of service, what assistance you have sought, for example, occupational health, and medical reports. You also need to ensure that you follow your internal sickness and absence policy, that you consider others, and of course the impact on your business.
It is safe to say that prior to making any decisions, exploring options, whether these are reasonable adjustments to assist the Employee to do their job or to return to work are crucial in the process and cannot be overlooked.
As an Employer should I consider making reasonable adjustments?
Whilst we have mentioned dismissal and that it can be achieved, it must be handled in the right way, and importantly for valid and justifiable reasons.
Dismissal because of a disability can and does often amount to unlawful discrimination. An employee will be classed as having a disability if they have a physical or mental impairment that has a substantial and long-term negative effect on their ability to carry out normal day-to-day activities, this is an area that is vast, as an Employer assumption should not be made into an Employees health and wellbeing.
We cannot stress enough that dismissing an Employee due to ill health is dependent on their capability to do their job, and his will require you to prove that as the Employer you have dismissed them because of their inability to perform their duties, as opposed to discriminating against them.
We always err on the side of caution and advise that dismissal of an Employee should be made as a last resort, for instance where you have exhausted all other options available, for example by making reasonable adjustments within the workplace to remove any disadvantage that may be suffered by the Employee including making physical adaptations, such as PC adaptations, or ergonomic chair, or the installation of a ramp, it may be that amended duties/hours, a change of role, and or phased return.
If the Employee is dismissed by reason of disability, as the Employer you would need to demonstrate why you were unable to make any reasonable adjustments, if you can demonstrate that the Employee cannot do their job because there are no reasonable adjustments that can be viably made to remove any disadvantage, the dismissal would be fair.
Are there any risks of getting dismissal due to ill health wrong?
Dismissal of any Employee should only be used as a last resort after exploring all avenues in which you can help the Employee to do their job or return to work.
There is a significant risk in tribunal cases leading to an award of damages, of course, with associated legal costs, getting things wrong when dismissing because of a disability can amount to unfair dismissal and unlawful discrimination.
it is important to bear in mind that there is no qualifying period for a claim for unlawful discrimination, it is, therefore, irrelevant how long an Employee has been employed by you, as you may be aware under normal circumstances the Employee would need to have 2 years’ continuous service with you to claim for unfair dismissal.
As an Employer how can I avoid the risks?
As an Employer you should minimise your risk of exposure to legal action, you can do this by looking for ways to support the Employee suffering from ill health, including making any reasonable adjustments within the workplace, you should have fair policies and use these consistently.
When we consider reasonable it does depend on a case-by-case basis and the facts, you also need to take into account costs, many Employers simply cannot afford to install ramps and lifts, if the costs are too high, then it may not be reasonable, along with making reasonable adjustments you need to consider how effective and practical they will be. As mentioned, judgments should be made on a case-by-case basis, financial implications should be considered along with statutory duty as an Employer.
We mentioned earlier that as an Employer you should be seeking the support of occupational health, their help can be invaluable, and you can gain insights into what reasonable adjustments may be required/offered, options for returning to work, and in what capacity.
As an Employer you should also be regularly reviewing and assessing the Employee’s Medical Certificates (fit notes), these should provide recommendations from the Employee’s GP or Medical Practitioner as to what adjustments can be made to help them get back to work, this may be a phased return, amended duties, altered hours or workplace adaptations.
As an Employer you can make an application under the Access to Medical Records Act 1988, (bearing in mind the Employee does not need to consent to this) again this may provide you with further insight into the Employees health and planned return to work.
We strongly encourage you as the Employer that only once you have explored all other options available, and where there is no other viable alternative that a decision to dismiss should be taken, in this instance we urge you to make contact and we can assist you to minimise the risk.
While this article has given you enough of an overview of what dismissal and ill health is and the myths, this is a complex topic, it is impossible to cover every aspect of them in a single post.
If you need to manage ill health and need any extra help or support through the process, we at HR and You Ltd are experienced in our understanding of capability and ill health in the workplace. Do not hesitate to contact us via email, [email protected], or phone, 0333 006 9489, for a no-obligation chat to find out whether our services are right for you.
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