Disability and unfair dismissal

25 February 2021

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.

Your employer is still under a legal obligation to ensure that the decisions that they make in response to the coronavirus pandemic do not discriminate against you because of your ill health or disability.

Dismissed because of disability, ill health or injury

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. Reasonable adjustments can include options to work from home, regular breaks or time off work, for example to shield due to a health condition which makes you more susceptible to coronavirus.

Disability and coronavirus

If you have a disability and, as a result, have received government guidance that you must shield, it's likely your employer has an obligation to make reasonable adjustments. For example, they may consider putting you on furlough if you are unable to work, or they may agree for you to work from home. If it is found that you have been treated unfavourably due to your disability and your employer cannot show that it is justified, you may have a claim.

Mental health issues are increasingly more common as a result of the coronavirus pandemic. If you are suffering with issues such as stress, anxiety or depression, you should be supported by your employer. They have a duty of care to do all that they reasonably can to support your health, safety and wellbeing.

You should raise any issues with your employer in the first instance to allow them to make simple adjustments and support you. You might also want to ask your employer for a referral to occupational health, who can also make recommendations to support you. If your employer doesn't make adjustments or dismisses you for disability-related absence without considering any adjustments, you may have a claim.

However, dismissal on the grounds of ill health or injury can be a fair reason for dismissal providing the employer has followed a fair procedure. This includes consulting with you, seeking medical advice and considering alternative employment.

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 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.

If you are unsure if you meet the legal definition of having a disability, or if you need assistance in making a claim against your employer, our Employment experts can guide you through the process. Our Employment Solicitor fees can start on a fixed fee basis and your legal fees may be covered if you have Legal Expenses Insurance.

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