Under the Employment Rights Act there are five potentially fair reasons for dismissal. For a dismissal to be fair, an employer needs to be able to show the reason comes under one of those categories, and that the decision was reasonable in the circumstances, and was taken following a reasonable procedure.
Once of those reasons is capability – an employee may not be capable of fulfilling their job, perhaps because of skills, attitude or a lack of appropriate qualifications, but also because of health or other physical or mental reasons.
Those health-related or physical/mental reasons don’t always involve a disability, however clearly sometimes there will be circumstances whereby an employee with a disability cannot perform their role and you need to consider whether you can continue to employ them. If you cannot, the reason for dismissal will be capability, so potentially fair, but to protect yourself from claims of unfair dismissal and unlawful discrimination, there are a number of factors to consider:
Employees with a disability can claim unfair dismissal from day one
There is a two year length of service requirement for bringing an unfair dismissal claim, however there are a number of exceptions to this, including where the reason for dismissal is completely or partly because of a disability. So if you would ordinarily dismiss someone who is, for example, on probation by simply giving a week’s notice, where there is a disability involved you need to be much more careful about decisions and procedure.
Seek as much information as possible before making the decision
When you are contemplating possibly having to dismiss someone for a disability-related reason, arm yourself with as much information as you can. Obtain guidance from occupational health specialists as to the nature of the condition, how it relates to work, whether it constitutes a disability and what reasonable adjustments can be considered. Talk to your employee about their condition and how they believe it relates to work, and what adjustments they think would be appropriate or possible. Seek guidance from an employment law professional to ensure you follow a fair and reasonable procedure.
Make reasonable adjustments
We have more information about reasonable adjustments here, however it is absolutely vital when contemplating a capability dismissal where a disability is (or might be) involved, that you actively seek to establish whether there are any adjustments that could be made to facilitate the employee returning to work, and to carefully consider whether implementing those adjustments is reasonably possible in your workplace.
Don’t rush into it
Often capability dismissals come at the end of a long period of sickness absence or other ill-health. While you are not expected to wait indefinitely for someone to be fit to come back to work, you should not rush into a decision. Any medical condition, whether a disability or not, can progress or change over a period of time, particularly where treatments are being tried. Seek medical advice at regular intervals to get a picture of the progress of any medical condition and its impact on the employee’s ability to work, and review any decisions about reasonable adjustments on a regular basis. Where it becomes clear that a return to work is unlikely in the medium-future, you may then be in a position to dismiss fairly.
As with any dismissal, consultation is important. This is no different with a capability dismissal. If you are considering the possibility of having to dismiss someone for a disability-related reason, consult them about it, explain the decision you are making, the reasons for it and give them an opportunity to ask questions, make alternative suggestions and put forward any points they wish to make before a decision is made.
With a capability dismissal for health or physical/mental condition reasons, it is not a case of needing to follow a procedure whereby the employee is given a series of warnings, as you would where the reason was related to performance. However you do need to still follow a number of aspects of a similar procedure, including the right to be represented by a colleague or trade union representative at a hearing where dismissal is being considered, and the right to appeal a decision you have made.
Ultimately, although employers are of course required not to treat disabled employees less favourably than those employees who are not disabled, that requirement does not extend to having to keep a disabled person employed where it is genuinely not possible to do so. So you can consider capability dismissal if you need to, but proceed with caution and ensure the decision is absolutely necessary before doing so.
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