Letting an Employee Go due to High Absence
Employers tolerate a reasonable level of sickness absence by their employees but when the absences become high, employers may consider letting any of those employees go. In such circumstances, the employee’s potential rights must be considered especially if these absences are due to any type of disability.
What Categorises an Employee as Disabled?
Under the Equality Act 2010 (“the Act”), a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on the employees’ ability to carry out normal day to day duties. There is no qualifying period of employment for an employee to bring any form of discrimination claim. This means that an employee who has less than two years’ service and therefore cannot claim ordinary unfair dismissal, may be able to bring a disability discrimination claim if they are dismissed due to their sickness absence.
Real Life Example
In the case of Ali v Torrosian & Others (T/A Bedford Hill Family Practice), the Employment Appeal Tribunal (the EAT) held that to determine whether a disabled employee’s dismissal following long-term sickness absence is unfair and/or discriminatory under section 15(1) of the Employment Equality Act 2010, an Employment Tribunal (the Tribunal) should undertake a similar analysis of the facts of the matter.
Dr Ali worked as a GP for the Bedford Hill Family Practice (the Practice). He went on long-term sick leave following a heart attack and his condition was a disability for the purposes of the Act. A medical report confirmed that it was unlikely that Dr Ali would be able to work full time, but advised he could return on a part-time basis. Dr Ali was dismissed by the Practice on the grounds of incapability.
He brought claims of unfair dismissal and disability discrimination. The Tribunal held his dismissal was procedurally unfair because the Practice had failed to consider his return to work on a part-time basis.
Dr Ali’s disability discrimination claim was brought under section 15(1) of the Act which states that discrimination arising from disability occurs where both:
• A treats B unfavourably because of something arising in consequence of B’s disability.
• A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
The Tribunal rejected Dr Ali’s disability discrimination claim and concluded that while his dismissal amounted to unfavourable treatment and arose in consequence of his disability, it found that the Practice was justified to dismiss him on the basis that it had a legitimate aim of ensuring that the best possible care was provided to patients.
Dr Ali appealed to the EAT which held that the Tribunal had erred in failing to consider the issue of part-time working as a less discriminatory means of meeting the Practice’s legitimate aim. The EAT has referred the case back to the Tribunal to reconsider the matter in view of its finding that the Practice has been able to accommodate part-time working.
The above case highlights that an employer will need to treat an employee who has taken disability-related absence in a similar way to an employee with the right to claim unfair dismissal otherwise they may find that they have unlawfully discriminated against their employee on the grounds of their disability.