Common misconceptions: Dismissing employees and dealing with disabilities

Over coming eNews issues we thought that it may be helpful to deal with things that we see commonly, which employers either do without thinking or questioning or find difficult.  If you have always wondered why something is approached or referred to in a specific manner - but not understood why, then please contact us and we'll be happy to deal with it in future eNews issues.

"Your behaviour leaves me with no option but to dismiss you"

This is a commonly used phrase in dismissal letters following a disciplinary process and one we invariably amend.  There is always the option not to dismiss, but it may be that in the circumstances dismissal is the correct outcome and explaining the reasons why that decision is reached must be the key aim of the disciplinary outcome letter.  We frequently find that dismissal letters are too short and lacking in detail.  They are key documents in any employment tribunal proceedings – recalling matters when a witness statement is prepared several months later and explaining why a decision was reached without that detail in the dismissal letter causes real and unnecessary pressure for any dismissing officer at tribunal.  Clear dismissal letters also ensure that the employee (and any adviser that they see) have a clearer picture of the reasons for the decision and in our experience make it far easier to manage any appeal process and any negotiations that might ensue on a pre-claim basis or otherwise via ACAS.

Ideally, all disciplinary outcome letters should cover:

• Each allegation that has been considered at the disciplinary hearing, the evidence that has been put forward and considered on either side and the person dealing with the disciplinary hearing's conclusions in relation to that evidence;
• The disciplinary outcome and why that is deemed to be appropriate in the circumstances, including the considerations that the person dealing with the disciplinary hearing has taken of any mitigating circumstances such as the employee's length of service, disciplinary record, the nature of the allegations, the availability/viability or otherwise of any alternative outcome.

This involves a longer and more detailed letter and we accept that this takes time to do properly.  However, the investment of that time is likely to provide dividends in the future management of the matter.  At the end of the day tribunals understand the difficult position that any person dealing with a disciplinary hearing is in and provided that person can show that they have fully considered the evidence before them and considered the alternatives before determining dismissal is the appropriate outcome, a tribunal is  less likely to find against the employer.

"They never told me that they were disabled when I took them on"

With certain limited exceptions, the basic legal position is that there is no obligation for an employee to inform their employer that they have a disability.  Indeed, it's widely felt that many employees either do not appreciate that they may be classed as disabled under the provisions of the Equality Act 2010 or may feel that as any medical condition does not prevent them from doing things day to day that they need to inform their employer.

Having a clear recruitment process which has a clear job description and person specification and which asks whether any employee will need an adjustment to that role or the selection process to be followed is a useful starting point.  The use of medical questionnaires is only available pre-offer stage where an employer can show that such information is needed to fulfil an intrinsic function of the role and for many office and administration tasks more and more employers do not now require any form of questionnaire to be completed.

If an employee is disabled (ie. they fulfil the Equality Act definition of having a physical or mental impairment which has a substantial and long term affect on their ability to carry out normal day to day activities) then the obligation to consider reasonable adjustments arises.  Disability is the only strand of discrimination protection which allows for an employer to directly discriminate against a candidate or employee because of their protected characteristics (as this is what happens effectively when you dismiss an employee as a result of long term ill health issues).  The law only allows employers to do so provided that they fulfil the duty to consider any reasonable adjustments and that is an active duty on the employer – it is not enough to ask the employee what they feel might help.  They employer must investigate and consider what it can do and the larger the employer the more is expected of them.

Unless an employer can show that an employee has deliberately withheld information or misled the employer as part of any medical questionnaire relevant to the role during the appointment process, an employer will have to deal with the disability related considerations when they arise focussing on the considerations around reasonable adjustments.

"Surely if they looked after themselves better they wouldn't be disabled and this should be a factor we can take into account"

This question can often arise if an employee has certain categories of diabetes or is obese.  Obesity on its own is not a disability, but the causes of obesity or the affects of it can amount to disability for the purposes of the Quality Act definition.

The law does not focus on the cause of the disability.  Neither does it consider whether or not any medical condition is preventable or its effects can be reduced with a specific treatment or exercise regime or by the employee making certain lifestyle choices.  An employer needs to deal with the employee as they are and providing access to gym or other healthy living initiatives to the workforce as a whole will undoubtedly help, but if an employee chooses not to pursue these for any reason then they are not factors relevant legally to the management of their condition. They do not dilute the employer's duty to make reasonable adjustments.

As with most areas of HR practice, communication with the employee regarding their condition, the affects that this is having on their work and the considerations/process that the employer will follow will be needed.

For more information, help or advice please contact Chris Maddock on 0191 211 7919 or email [email protected].