The overlapping provisions of the Equality Act can cause confusion when dealing with disability-related dismissals. While these dismissals will always require careful handling, some help is at hand from recent cases. Jog Hundle from Mills and Reeve explains.
What provisions are in play?
Hard-pressed HR managers are not expected to have a copy of the Equality Act in front of them when managing staff who are off sick, but some knowledge of the key provisions can be helpful.
While in theory there are at least four possible types of discrimination that could be in play, in reality the two most likely to be relevant are the failure to make reasonable adjustments, and discrimination ‘arising from’ disability.
In the past disabled workers who have been dismissed on health grounds have tended to focus their claim on the failure to make adjustments, but an influential decision from the Employment Appeal Tribunal last year has pointed out that the decision to dismiss itself is probably best analysed in terms of discrimination arising from disability.
An employer will infringe this provision if it treats a worker ‘unfavourably’ because of ‘something arising in consequence of’ the worker’s disability unless the treatment can be justified ‘as a proportionate means of achieving a legitimate aim’. Given that dismissing someone is undoubtedly a case of unfavourable treatment, this provision will always be engaged in capability-related dismissals of disabled workers.
The justification question
What this means is that when dismissing a disabled worker on capability grounds, the key question is likely to be whether or not the employer can meet the justification defence. This is an objective standard, measured by a balancing exercise that is similar to the one that must be undertaken when assessing the fairness of a dismissal for the purposes of the Employment Rights Act, though it is probably a little more onerous.
The answer will depend on a range of familiar factors such as the state of the worker’s health, the importance of the job, possible alternatives to dismissal and the financial and other resources available to the employer.
In reality, capability proceedings do not always unfold in the way that the textbooks seem to envisage. For example, the employee may refuse to engage in the process, or there may even be concerns about the employee’s conduct during sick leave.
Some helpful guidance has recently emerged from the Employment Appeal Tribunal, in a case involving a senior employee with a serious heart condition who had been disciplined for attending interviews and courses while on sick leave. The EAT has said that it should not be assumed that disciplining a disabled employee for abusing sick leave will automatically engage the Equality Act’s provisions. In each case it is necessary to start by asking what has ‘arisen’ from the disability that has caused the unfavourable treatment. It is only if this ‘something’ has been identified as having ‘arisen’ from the disability that it is necessary to consider whether the treatment was justified.
Similar issues arise if the decision is examined with the duty to make reasonable adjustments in mind. Here the first step will be to assess whether the steps taken have put the disabled worker ‘at a particular disadvantage’ when compared with other employees. In recent years tribunals have placed particular emphasis on the need to start with the comparative exercise. If there is no comparative disadvantage there will be no obligation to consider adjustments at that point.
That is not to say that employers now have a green light to get tough on disabled workers on long-term sick leave. One key decision is being appealed and in any event case law can only offer limited guidance in an area where the employee’s individual circumstances vary so greatly. However, these recent decisions do provide some additional support for robust but fair management of capability issues in the workplace.