Fri 17 August, 2018
Dismissing someone on long term sick leave and the risks.
When any employee is off work through illness(1)it can and often cause problems for businesses, not only with the increased workload for others to pick up and disruption to the business operations but there is always a cost of some kind.
Dismissing an employee on long term sick leave is a risk and can be costly not done properly and a recent case, Ali v Torrosian and others (t/a Bedford Hill Family Practice)(2)at the Employment Appeal Tribunal(3)(EAT) provided a useful reminder for employers.
When an employee is on long term sick leave one of the considerations must be, will it be classed as a disability under the Equality Act(4)? And if yes what reasonable adjustments(5)should be put in place.
What is classed as a disability?
The Equality Act 2010 defines a disability 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.
Discrimination on the grounds of disability can occur in different situations and in this case it was it was under section 15 of the Equality Act:
“Where an employer treats a person unfavourably because of something arising in consequence of their disability, and the employer cannot objectively justify such treatment as a proportionate means of achieving a legitimate aim.”
Facts of the case
The employer (four partners) was a GP practice in South West London and Dr Ali worked for them as a GP. He was signed off from work on the 9th November 2014 after a heart attack and because of the ongoing heart condition, he did not return to work before his dismissal for capability, ill health over a year later on 16 November 2015.
The medical evidence provided by Dr Ali stated that he would not be able to return to work on a full time; however, he was available to work part time starting on a phased return to work. Dr Ali was invited to a capability meeting on the 8th October 2015 and at that meeting it was confirmed that he would not be able to return full time only part time. He also advised his employers that he needed further sick leave due to a shoulder condition.
Dr Ali submitted a further ‘fit note’ from the 1st October until 15th November 2015 and the employer dismissed him on the 16th November 2015 on the grounds of capability that he was no longer able to carry out his role.
The Employment tribunal(6)(ET) held that the dismissal was unfair on the ground that the Company have failed to follow a fair process. The Practice had failed to consider alternatives to his dismissal, failed to have any further meeting and did not obtain up to date medical information.
It also found that Dr Ali had been subjected to unfavourable treatment under section 15 of the Equality Act and that the unfavourable treatment arose in consequence of his disability. However, it considered that the Company was able to justify the dismissal as its legitimate aim was to ensure that the best possible care was provided to patients. Dr Ali appealed.
The EAT upheld Dr Ali’s appeal, found that tribunal was correct in considering the employer’s failure to offer part time work resulted in an unfair dismissal; but the tribunal should had also considered this failure in respect of disability discrimination as well and whether part-time work could be a less severe way of the employer achieving its legitimate aim, rather than dismissing him, especially as Dr Ali had indicated that a part-time arrangement would work and this was supported by medical evidence.
In order to be proportionate, the treatment should be both appropriate and reasonably necessary in the circumstances, and the tribunal must balance the discriminatory effect on the employee with the legitimate aim that the business is trying to achieve as a result of such treatment. In considering proportionality, tribunals should consider whether a less discriminatory route might reasonably achieve the same aim.
The EAT found for Dr Ali, there had not been any consideration of the possibility of part-time working.
The case was remitted back to the same tribunal for reconsideration.
Take away point
Employers need to ensure sure that they follow a fair and proper process when dealing with employees who are long term sick and if an employer fails to consider alternatives to dismissal, not only will the dismissal likely be deemed unfair, but it is also unlikely to be unjustifiable and therefore, discriminatory.
There is a duty on employers to make reasonable adjustments for their disabled employees
1. Understanding sickness, your rights and being disciplined whilst sick. Ask the Expert. - YouTube [Internet]. [cited 2018 Aug 13]. Available from: https://www.youtube.com/watch?v=oRylZrr9HdI&t=7s
2. Ali v Torrosian & Ors T/A Bedford Hill Family Practice UKEAT/0029/18/JOJ [Internet]. [cited 2018 Aug 13]. Available from: https://www.employmentcasesupdate.co.uk/site.aspx?i=ed37225
3. Employment Appeal Tribunal - GOV.UK [Internet]. [cited 2017 Dec 4]. Available from: https://www.gov.uk/courts-tribunals/employment-appeal-tribunal
4. Participation E. Equality Act 2010 [Internet]. [cited 2018 Aug 13]. Available from: https://www.legislation.gov.uk/ukpga/2010/15/contents
5. Understanding an employer’s duty to make reasonable adjustments [Internet]. Castle Associates Ltd. 2017 [cited 2018 Aug 13]. Available from: https://castleassociates.org.uk/blog/understanding-employer%E2%80%99s-duty-make-reasonable-adjustments
6. Employment Tribunal - GOV.UK [Internet]. [cited 2017 Dec 11]. Available from: https://www.gov.uk/courts-tribunals/employment-tribunal
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