Disability and Unfair Dismissal
08 March 2017
If you have lost your job in the UK due to ill health, you are potentially protected by two areas of Employment law: The Equality Act 2010, and the right not to be unfairly dismissed under the Employment Rights Act 1996.
Dismissed Because of Disability, Ill Health or Injury
Your employer is not allowed to discriminate against you because you’ve got a disability.
To be protected against discrimination for a disability, you must first show that your condition meets the criteria for the legal definition of disability. To do so, you must demonstrate that you have a mental or physical impairment which has a substantial and long term effect on your ability to carry out day to day activities.
You are then required to show you have been discriminated against by your employer. This may be directly, indirectly, harassment, victimisation, discrimination arising from your disability, or the failure to make reasonable adjustments at work to accommodate your disability.
However, dismissal on the grounds of ill health or injury can be a fair reason for dismissal.
How would a Tribunal Decide?
If you have been dismissed from your job because of your disability, ill health or injury, an Employment Tribunal would refer to the following questions when considering whether you have been unfairly dismissed:
- When considering all circumstances of the case, would a reasonable employer have waited longer before dismissing you?
- Were your views taken into account about the likelihood of a return to work?
- Has the employer sought proper medical advice to obtain a prognosis on your condition?
With regards to ill health, the likely duration of your illness is an important consideration. This would be the case, for example, if medical advice suggested an employee would be able to return to work within a certain definitive time period. If you were dismissed during this period then it’s possible it would be unfair.
If after a reasonable period of time you are unable to say when you are likely to be able to return to work, that will weigh heavily in favour of an employer. An employer is not expected to wait indefinitely for an employee to return to work.
You may also be dismissed if you have had regular short term absences, which when taken together, might show you are unable to provide sufficient service for your employer.
With regards to injury, if an employer can be found to be responsible for either causing or exacerbating your injury, then the Employment Tribunal will normally expect a greater level of care from the employer in considering whether to dismiss you.
If dismissal is a strong likelihood, the employer should consider alternative work, if available, prior to dismissing you. There is no requirement to create work or jobs if none exist, but the employer should take reasonable steps to find alternative employment as part of the dismissal process.
Claiming for Unfair Dismissal
In order to pursue a claim for unfair dismissal, you must have worked for your employer for a period of at least 2 years.
If you are found to have been unfairly dismissed, you may be entitled to a Basic Award (which is calculated in the same way as a Statutory Redundancy payment) and/or for your losses between your dismissal and finding new employment.
If you successfully prove you had been discriminated against because of your disability, the Employment Tribunal would consider making an Order for compensation known as an injury to feelings award. This may be in addition to any award for an unfair dismissal and will take into account the seriousness and duration of the discrimination against you. Compensation for discrimination can be unlimited in exceptional cases.