Can I dismiss an employee with a disability?

legal updates

Dismissing a underperforming disabled employee will not always end in a disability discrimination claim.

Read our disclaimer keyboard_arrow_down

This website content is intended as a general guide to law as it applies to the motor trade. Lawgistics has taken every effort to ensure that the contents are as accurate and up to date as at the date of first publication.

The laws and opinions expressed within this website may be varied as the law develops. As such we cannot accept liability for or the consequence of, any change of law, or official guidelines since publication or any misuse of the information provided.

The opinions in this website are based upon the experience of the authors and it must be recognised that only the courts and recognised tribunals can interpret the law with authority.

Examples given within the website are based on the experience of the authors and centre upon issues that commonly give rise to disputes. Each situation in practice will be different and may comprise several points commented upon.

If you have any doubt about the correct legal position you should seek further legal advice from Lawgistics or a suitably qualified solicitor. We cannot accept liability for your failure to take professional advice where it should reasonably be sought by a prudent person.

All characters are fictitious and should not be taken as referring to any person living or dead.

Use of this website shall be considered acceptance of the terms of the disclaimer presented above.

We often receive calls from clients who are nervous about dismissing an underperforming employee who has a disability.

This is understandable as there is substantial legislation which provides specific protection to employees with disabilities.

Under Section 15 of the Equality Act 2010:

(1)A person (A) discriminates against a disabled person (B) if—

(a)A treats B unfavourably because of something arising in consequence of B’s disability, and

(b)A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

So, a disabled employee must not be treated less favourably than a non-disabled employee as a result of something arising in consequence of that disability. For example, if someone with cancer had a lot of time off sick for chemotherapy and radiotherapy treatment and recovery, that time off cannot alone be used a reason to dismiss them unless the employer can show the dismissal was a proportionate means of achieving a legitimate aim. Traditionally, this is a sticky area for employers. However, an Employment Appeal Tribunal (EAT) case from earlier this year (Charlesworth v. Dransfield Engineering Services Ltd) will perhaps give employers some confidence that dismissing a underperforming disabled employee will not always end in a disability discrimination claim.  

In the Charlesworth case, the employee had around 2 months off for an operation following a diagnosis of renal cancer.  While he was off, the employer was able to absorb his work among other employees which led to a decision to make the employee’s £40,000 managers post redundant. The employee put in a claim for disability discrimination but the EAT ruled that although his time off was something arising out of a disability, the actual decision to make the post redundant was that a £40,000 cost saving could be made by restructuring. So the time off was a factor in terms of context but it was not the reason for the redundancy dismissal and therefore there was no disability discrimination.    

All these types of cases will turn on the facts of each individual matter and so Lawgistics members should always call to speak to one of our employment advisers before proceeding because if as an employer you get it wrong, it can be very expensive as there is no cap on compensation in regards to disability discrimination.    

HowdenCompetitive, comprehensive, quick

One of the largest independent specialist motor trade brokers in the UK. Our extensive history of supplying insurance to the motor trade means we understand your business needs. By partnering with a specialist insurance broker like us, you get exactly what you need to protect your business.

Nona BowkisHead of Legal Services / SolicitorRead More by this author

Related Legal Updates

When Travel Time Counts As Work

A prudent employer will ensure that the working arrangements, employment policies, or employment contracts clearly define when travel time constitutes paid work time.

Annual Leave for Irregular Hours Workers

The key element here is that the number of worked hours is defined in the contract.

Employment settlements legal advice

We encourage our members to not assume they can reach a mutual understanding with a departing employee.

Extension of Redundancy Protection for Pregnancy and New Parents

Explore the strengthened redundancy protections for new parents with significant amendments to maternity, adoption, and shared parental leave rights, effective from April 2024, ensuring enhanced job security during critical family milestones.

Changes to Flexible Working

Unveil the new landscape of flexible working rights with the Employment Relations (Flexible Working) Act 2023, now granting ‘day-one’ rights to employees and setting a precedent for more adaptable workplace practices effective from 6 April 2024.

New employment legislation effective from 6 April 2024

Enhanced employee rights, offering day-one entitlements to carer’s leave, flexible working arrangements, and extended redundancy protection for pregnant employees and those on family leave.

Wages increasing from 1 April 2024

With effect from 1 April 2024, the hourly rates of pay are…

Get in touch

Complete the form to get in touch or via our details below:

01480 455500

Vinpenta House
High Causeway

By submitting this quote you agree to our Terms & Conditions and Privacy & Cookies Policy.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.