UK: Ill Health: Factors To Consider For Capability Dismissals

Last Updated: 1 December 2015
Article by Ravinder Mahal

In Monmouthsire County Council v Harris the Employment Appeal Tribunal (EAT) confirmed that in cases of long-term sickness, where an employee's sick leave may have been avoided altogether if the employer had complied with its obligations to make reasonable adjustments, the employer's failure to do so is relevant, but it is only one of many considerations in deciding fairness and whether a dismissal is proportionate.

The Claimant, Mrs Harris, was employed as a Senior Education Welfare Officer and it was accepted that she had a disability. She had been allowed to work from home as a result, but following the appointment of a new line manager in August 2010, it was decided in January 2013 that she was no longer permitted to work from home. The Claimant went off sick and claimed she was being harassed by her new line manager and made a request to return to home working. She was off work for some time and a medical report in July 2013 found that it was unclear when she was likely to return to work. For these reasons, the employer decided that it could not wait any longer and dismissed her on grounds of capability on 31 July 2013. She made a claim in the Employment Tribunal (ET) for amongst other things, unfair dismissal, harassment, a failure to make reasonable adjustments and discrimination arising out of her disability.

Although the Claimant's claims for harassment and failure to make reasonable adjustments were out of time, the ET said that it was entitled to take them into account on the overall question of fairness and held she was unfairly dismissed and that it was an act of discrimination arising from the Claimant's medical condition. The employer had failed to warn Mrs Harris about dismissal; had not consulted her properly, and did not sufficiently consider that its failure to make reasonable adjustments caused the absence. The employer then appealed to the EAT.  

The EAT overturned the ET's judgment of unfair dismissal and discrimination arising from a disability. It held that whilst the employer's failure to make reasonable adjustments should be considered, so should the pressure on the employer's resources in continuing to support Mrs Harris. The ET had placed too much emphasis on this failure especially given that there was no continuing obligation to make the adjustments. The ET had not properly considered whether the dismissal was proportionate in the circumstances. The EAT found that the employer had established that the dismissal was a proportionate means of achieving a legitimate aim, namely the safeguarding of public funds and the need to consider the stress on the remaining Educational Welfare Officers especially since it was unable to fund a replacement to cover the Claimant's continuing absence.

The EAT held that whether a dismissal on ill health grounds was fair depended on numerous factors:

  • Would a reasonable employer have waited longer before dismissing the employee?
  • The need to undergo consultation with the employee and take account of their views;
  • Taking steps to discover the employee's medical condition.

This case highlights steps that must be taken by employers:

  • Are they able to offer continued support? Consider: the strain on resources; the size and nature of the business; the specific role; alternative work; and the likely period of return.
  • Has the correct process been followed? Consider: Proper consultation with the employee; warn about possible dismissal; exclude people from the process against whom there is a grievance.
  • Has a medical report been obtained? Consider: that the report is clear on the prognosis i.e. the likely period of recovery, which if specified, can the employer wait? or if there is no certainty, how much longer can it wait balancing this against its resources and business needs.

Although not decisive in itself, a failure to make reasonable adjustments will be considered by a Tribunal as a factor when deciding whether a dismissal was unfair. Employers should consider potential reasonable adjustments in order to minimise its exposure to disability and unfair dismissal claims.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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