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Dismissing Disabled Employees on Capability Grounds – Don’t Be Hasty

There are few more sensitive tasks than dismissing disabled employees on grounds that they are not capable of doing their jobs. An Employment Tribunal (ET) decision in the case of a construction project manager stricken by arthritis underlined the serious financial consequences of reaching such decisions in haste.

The long-serving employee suffered from psoriatic arthritis affecting the joints in his wrists, hands, ankles and feet. His condition failed to respond to several different medication regimes that had serious side effects. Following extended periods of sick leave, his line manager felt increasingly that his absences were causing operational difficulties and that he could not be relied upon to attend work.

His condition was exacerbated by his long commute to the construction site on which he worked. The length of time he spent travelling meant he could not follow medical advice to take exercise at least three times a week. Inquiries were made as to whether he could be redeployed to a site nearer his home but, after no suitable vacancies were found, he was dismissed on capability grounds.

In upholding his unfair dismissal claim by a majority, the ET noted that it was a finely balanced case. It found, however, that the employer should not have dismissed him when it did. It should instead have reduced his hours and reviewed the position monthly to see how he was getting on. Postponing the decision would have given more time for an alternative position to be found for him. His condition might also have improved to the point where he could resume his former role.

Given the employer’s resources and headcount – it employed over 2,500 people – it should have made specific inquiries of medical and occupational health specialists as to the likelihood of his treatment succeeding. The formal process leading up to the dismissal of a veteran employee was too short and over-hasty and did not fall within the range of reasonable responses open to the employer.

Also upholding his disability discrimination claim, the ET noted that his difficulty in coping with lengthy commutes placed him at a substantial disadvantage when compared with non-disabled colleagues. The reasonable adjustment of temporarily reducing his working hours would have lessened that disadvantage. He would not have been required to travel during the rush hour and the time available for him to take exercise would have been increased.

The ET found that the dismissal decision, if it had remained necessary, should have been postponed for at least a further 12 weeks beyond his 12-week notice period to see if he could return to work successfully. The discrimination found was limited and of short duration, having arisen from poor judgment rather than any deliberate or intentional act. He was awarded a total of £35,526 in compensation, including £13,387 for unfair dismissal and £10,000 for injury to his feelings.

Published in
31 May 2021
Last Updated
20 June 2021