Avoiding unlawful discrimination when dismissing a worker

First, use the list in Core guidance for employers to make sure you know what equality law says you must do as an employer.

This section looks at three issues:

  • Reasons and procedures
  • Making sure you are not discriminating unlawfully in dismissing a disabled person
  • Dismissing a disabled person because they can no longer do the job

Fair and unfair dismissal

This guide only tells you about equality law. There are other laws which you need to follow to make sure a dismissal is fair. You can find out more about these from Business Link and Acas, whose contact details are found within Further sources of information. Following the procedures to make sure a dismissal is fair will also help you avoid unlawful discrimination. 

Reasons and procedures

You must avoid unlawful discrimination in the reasons you do for doing something and the way that you do it.

Make sure that your reasons for dismissing someone do not amount to unlawful discrimination.

Make sure that the disciplinary procedures you follow are not unlawfully discriminating either.

For example:

An employer tells a worker they are going to hold a disciplinary hearing with a view to dismissing them for misconduct. The date and time are set for a day which happens to be a religious holiday for the religion the worker holds. Unless the employer can objectively justify insisting on the hearing on that day (which the worker may well be unable to attend), this is likely to be indirect discrimination because of religion or belief.

There is more information about avoiding unlawful discrimination in disciplinary procedures in the Equality and Human Rights Commission guide: What equality law means for you as an employer: managing workers.  

Making sure you are not discriminating unlawfully in dismissing a disabled person

There are extra steps you need to take before you dismiss someone who is a disabled person. This is because you must consider not only whether you are discriminating directly or indirectly because of a person’s disability, but also:

  • You must not treat a disabled person unfavourably because of something connected to their disability where you cannot show that what you are doing is objectively justified. This is known as discrimination arising from disability. This only applies if you know or could reasonably have been expected to know that the person is a disabled person.

For example:

If a worker is a disabled person, you must also make reasonable adjustments if these are needed to remove barriers the person faces in doing their job. What this means is that you must first consider what adjustments would remove the barriers for the worker and second, if they are reasonable adjustments, you must make them. Would a reasonable adjustment remove the reason you are considering dismissing that worker?

For example:

A disabled person is being considered for disciplinary action which might lead to dismissal because of their persistent lateness. Their employer should find out whether their lateness is connected to their disability. There may be a poor frequency of accessible buses. Or it could be because the person’s condition is very painful in the morning so that getting to work on time early is difficult for them. If the employer dismisses the worker and cannot objectively justify what they have done, this could be discrimination arising from disability. The answer to this may well be for the employer to consider if there are any changes they could make which would be reasonable adjustments. The employer could look at varying their starting time rather than dismissing them. If they continued to be late even with an adjusted start time the employer may of course still wish to consider disciplinary action.

Dismissing a disabled person because they can no longer do the job

You must be particularly careful to avoid unlawful discrimination if the reason why you believe you need to dismiss someone who is a disabled person is because they can no longer do the job, for example, because they have been absent from work.

Although in this situation, the term ‘medical retirement’ may be used, or ‘retirement on ill-health grounds’, what this means in reality is that a person is leaving work because they are considered incapable of doing their job for a reason related to their health, and there are benefits for them in retiring, such as a pension.

If you and your worker genuinely agree that they should leave, then it is unlikely you will face a claim for unlawful discrimination.

If there is no agreement, for example, because your employee does not want to leave, or they see a prospect of returning to work, then you must make sure that you:

  • consider if there are reasonable adjustments which would mean they could return to work and continue to work for you (even if not in exactly the same job), and
  • make sure you are not treating them unfavourably because of something connected to their disability, such as a need for regular breaks, if you cannot objectively justify your approach.

What this means in practice

Before you consider making someone leave because of disability you should have thoroughly explored all other options to make reasonable adjustments to keep them at work.

This includes looking at any changes you could make to your working arrangements, or the physical features of your workplace, or whether you can provide additional equipment.

For example:

A worker is finding working full-time difficult because of increasing fatigue. The employer considers whether it is reasonable to let them work part-time rather than automatically considering them for early medical retirement.

If the impact of a person’s impairment is becoming more severe for them but this is not impacting on their ability to do their job then this should not be part of a decision about whether they continue to work for you.

However, if an impairment is making it harder for a disabled person to do their job, then the first step you must take is to consider what reasonable adjustments could be put in place to keep them disabled person at work.

If you do not look at reasonable adjustments, then requiring someone to stop working for you may be unlawful disability discrimination.

Reasonable adjustments to consider

Reasonable adjustments will vary according to the situation and the person’s particular needs. However, things to consider could include:

  • A phased return to work if someone has been off for a long while.
  • Part-time or flexible hours if someone is finding full-time working difficult.
  • Changes to premises, such as installing a ramp, improving signs, or moving someone’s desk nearer essential office equipment.
  • Provision of additional equipment, such as specific computer software or hardware if this is relevant to their job.
  • Additional support (for example, a part-time reader for someone who has a visual impairment to help manage the volume of written information which they have to get through).
  • Reassigning some elements of their job to another member of staff or transferring them to another role in your organisation.

You can read more about making reasonable adjustments to remove barriers for disabled people, including how to work out what is reasonable and how the government-run Access to Work scheme may be able to help.

Taking advice

In appropriate cases, as well as discussing it with the worker themselves, you may wish to consider seeking expert advice on the extent of someone’s capabilities and on what might be done to change premises or working arrangements. There are organisations that specialise in working with employers and their staff to help retain disabled workers through working out what adjustments could be made and whether they are reasonable.

However, you should be cautious about relying on medical advice alone to assess someone’s situation. A health professional may not be aware that employers have a duty to make reasonable adjustments, what these adjustments might be, or of the relevant working arrangements.

When it may be appropriate for someone to leave

If after consideration of:

  • the impact of a person’s disability on the job
  • any reasonable adjustments
  • discussions with the person themselves, and
  • (where appropriate) expert advice
  • it is not possible for someone to continue at work, then it may be appropriate for the person to leave.

 

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