The Equality Act 2010
Work related stress translating to long term absence is growing and the impact to business’ is significant. So, when it comes to dismissing an employee due to ill health can be tricky if it is to do with a potential protected characteristic in accordance with the Equality Act 2010.
Employment law experts suggests, that workplace stress drives up disability discrimination claims by more than a third. The number of disability discrimination claims at Employment Tribunals has risen by 37%, from 4,770 in 2017 to 6,550 in 2018.
So, from reading the above it can be argued that there is clearly is a fundamental flaw in HR practices that have opened up the liability to the employer.
Dismissal for sickness
Let’s take an example of a scenario, where the company is not happy with the performance of an employee who has only 9 months service and in addition has been off sick with stress and depression. The company wishes to dismiss the employee, as they have less than 2 years’ service and the employee cannot bring an unfair dismissal claim. Is the company ok to dismiss? The answer is not a clear yes or no, the employee may have a protected characteristic under the Equality Act 2010 and they may have a claim for disability discrimination.
So, how is a disability defined?
According to the Equality Act (2010), a person has a disability if:
- they have a physical or mental impairment
- the impairment has a substantial and long-term adverse effect on their ability to perform normal day-to-day activities
What does ‘substantial’, ‘long term’ and ‘day to day’ mean?
- 'substantial' means more than minor or trivial, for example it takes much longer than it usually would to complete a daily task like getting dressed
- 'long-term' means that the effect of the impairment has lasted or is likely to last for at least twelve months
- 'normal day-to-day activities' include everyday things like eating, washing, walking and going shopping
There has been a recent tribunal case, Parnaby v Leicester City Council where an employee was impaired by depression caused by work related stress. The tribunal ruled that he did not fit the definition of a disability. They said that his condition didn’t last over 12 months. The claimant appealed and the EAT overruled the decision and said the tribunal should have considered whether the impairment was likely to last 12 months or whether it might recur in the future. The tribunal made the assumption that removing the work-related stress by dismissing the employee, this would remove the impairment.
This judgement helps to clarify that the whole definition of a disability would have to be considered when making decisions on an employee’s employment.
Termination of contract
So, when considering a termination of contract for an employee who has a disability, employers should ask the following clarifying questions:
- Does the person have a physical or mental impairment?
- Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?
- Is that effect substantial?
- Is that effect long-term and the person would be affected in the future?
Medical practitioners can help you answer some of these questions, and if there is any doubt that the condition is a true disability, then other alternatives to dismissal would need to be considered. For example, reasonable adjustments or alternative employment. If none of these options are viable, then termination could be possible under incapacity. But the process is not as straightforward as it first may have appeared. We would encourage you to seek advice prior to taking action in such cases.
For support in managing employees who have a disability please contact our employment experts on 0333 240 7208.
