Dismissal and disability

If an employee’s medical condition is a disability, the employer has specific legal duties under the Equality Act 2010 (see page 27) and dismissal for disability-related sickness absence is likely to be discriminatory unless the employer has first made all reasonable adjustments (see page 29).

Case law contains hundreds of examples of reasonable adjustments that could have avoided dismissal, resulting in a finding of disability discrimination. Each case depends on its particular circumstances, but some recent examples include:

• redeployment to another part of the hospital for a disabled employee off sick with stress caused by bullying (Leeds Teaching Hospital NHS Trust v Foster [2011] UKEAT/2011/0052);

• paying the capped cost of private psychiatric sessions to treat ill health caused by overwork (Crofts Vets Limited v Butcher [2013] UKEAT/0340/12/LA).

However, the protections provided to disabled employees do not mean that a disabled employee can never be dismissed for capability.