How easy is it for my employer to dismiss me on the grounds of ill-health?
There are five potentially fair reasons for dismissal, one of which is capability. A reason falls within the definition of capability if it relates to the capability or qualifications of the employee for performing work of the kind which he was employed to do. Capability is assessed by reference to skill, aptitude, health or any other physical or mental quality.
Even where one of the potentially fair reason for dismissal applies, whether a dismissal is fair will depend on the reasonableness of the employer’s decision in the particular circumstances and the procedure followed.
The leading case on fairness in ill-health dismissals has made clear that the employer should establish the true medical position and consult with the employee before deciding whether to dismiss.
The following factors are likely to be relevant when considering the reasonableness of the decision to dismiss:
- The nature of the employee’s illness.
- The prospects of the employee returning to work and the likelihood of the recurrence of the illness.
- The need for the employer to have someone doing the work.
- The effect of the absences on the rest of the workforce.
- The extent to which the employee was made aware of the position.
- The employee’s length of service.
In long-term absences, further investigation is more likely to be required and fairness will involve the following key elements:
- Ascertaining the medical position.
- Consulting with the employee.
- Considering the availability of alternative employment.
Assuming a tribunal is satisfied that an employer has followed a fair procedure, the final question will be whether the employer can be expected to keep the employee’s job open any longer, which will depend on a variety of factors, including the size of the organisation, the availability of temporary cover, and the administrative costs of keeping the employee on the books.
In addition to a claim for unfair dismissal, you may have a claim under health and safety legislation. It may also be the case that your ill-health amounts to a disability under the Equality Act 2010. The definition of disability (whether endometriosis and/or depression) under the Equality Act 2010 has four elements:
- The person must have a physical or mental impairment.
- The impairment must have adverse effects that are substantial.
- The substantial effects must be long-term.
- The long-term substantial effects must have an adverse effect on normal day-to-day activities.
Serious work related stress could be seen to be a disability but it would really depend on whether the effects of the stress and anxiety are likely to be substantial adverse effects arising from their impairment and whether the effects are long-term (must last, or be likely to last, for one year). Without knowing more about your stress and anxiety, I would be unable to advise on whether this would amount to a disability.
Where a disability is present, the employer will need to consider what reasonable adjustments it might make to support the employee. The duty to make reasonable adjustments would arise in terms of 1) a provision, criterion or practice (PCP), 2) physical features of the building, and 3) auxiliary aids, where these would place you at a substantial disadvantage. A failure to comply with the duty to make reasonable adjustments is a form of discrimination.
A Provision, Criterion or Practice (PCP) has a broad definition. It refers to all rules and conditions that form part of your employment. These are not simply the formal policies contained within your contract or handbook, but all other arrangements and practices that exist within the workplace. Examples of these could be the hours that you work or any performance or disciplinary procedures as well as smaller things such as the way in which a manager allocates work to the team. A PCP can also be a future decision that has not yet been implemented and sometimes a “one-off” decision.
Another form of discrimination is direct discrimination. In order to be successful in this claim, you will need to show that, because of your disability, you have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to yours. The comparator may be non-disabled or have a different disability to you. The comparator must have abilities that are materially the same to yours.
Indirect disability discrimination occurs where a provision, criterion or practice is applied to you and other persons who do not have your disability which puts (or would put) you and those with your disability at a particular disadvantage when compared to other persons, and which cannot be justified by your employer as a means of achieving a legitimate aim.
It may also be that have suffered discrimination ‘arising from your disability’. This occurs where you are treated unfavourably because of something arising in consequence of your disability (for example, absence due to sickness) and your employer cannot show that the treatment is a proportionate means of achieving a legitimate aim. No comparator is required, here.