UK Employment Law\ Employer \ Illness Related Dismissal
Dismissal because of illness.
If an employee cannot fulfil the tasks that he or she was contracted to fulfil, then it is deemed a valid reason for dismissal.
If an employee becomes unable to carry out his or her contractual tasks because of a physical or mental problem, or is persistently absent because of illness, then there can be a case to seek dismissal. Employment tribunals are ready to recognise that it is not always possible for small companies to continue to employ ill employees. Tribunals also understand employers cannot be expected to continue to employ someone indefinitely if they are often off sick.
However, tribunals do demand that employers discuss the situation with the employee. The employer may also need to take medical advice with the employee's permission. If the organisation can accommodate, then it may be possible to find less demanding work for the employee.
Disability Discrimination Act 1995
A disability is termed by the Act as: "a physical or mental impairment which has a substantial and long-term adverse effect on (a person's) ability to carry out normal day-to-day activities".
This piece of legislation states that it is against the law for employers, with fifteen employees or more, to discriminate against employees with disabilities – whether they be currently working for them, or applying to work for them.
If a boss sacks a disabled person, or makes them take compulsory early retirement because of their disability, then the employer needs to be able to prove the action was taken for a “substantial and relevant reason”.
An employer must consider reasonable adjustments for the disabled employee, including:
- part-time working;
- additional sick leave;
- redeployment to other duties;
- transfer of minor duties to another employee.
Redeploying staff can be possible in larger organisations. However, small businesses will find this more or less impossible. It can also incur a cost of retraining for the disabled or sick employee. Often it might be a case where the only option for redeployment is into a role which some employees might deem to be below them after years of career progression. Employers should consult with the employee, the representatives and unions before making any such changes. They must also consider the effect on workers in the department where the ill employee has been redeployed.
More information
“What Employers Needs to Know (DL170)” published by the Disability Rights Commission.
Helpline: 08457 622 633
Textphone 08457 622 644.
Government code of practice: ISBN 0-11-270954-0.
