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.