Creating a fairer Britain
First, use the information earlier in this guide to make sure you know what equality law says your employer must do.
This section looks at three issues:
This guide only tells you about equality law. There are other laws which your employer needs to follow to make sure a dismissal is fair, in the sense that the proper procedures have been followed. You can find out more about these from Acas, whose contact details are found within the Further sources of information.
Your employer must avoid unlawful discrimination in why they do something and the way that they do it.
They must make sure that their reasons for dismissing you do not amount to unlawful discrimination.
They must make sure that the disciplinary procedures they follow do not unlawfully discriminate either.
There is more information about avoiding unlawful discrimination in disciplinary procedures in the Equality and Human Rights Commission guide: Your rights to equality at work: when you are being managed.
If you are a disabled person, there are extra steps your employer must take before they dismiss you. This is because they must consider not only whether they are discriminating directly or indirectly because of your disability, but also:
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 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.
If you are a disabled person, your employer must be particularly careful to avoid unlawful discrimination if the reason why they believe they need to dismiss you is because you can no longer do the job, for example, because you 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 employer genuinely agree that you should leave, then it is unlikely you will have a claim for unlawful discrimination.
If there is no agreement, for example, because you do not want to leave, or you see a prospect of returning to work, then your employer must make sure that they:
Before your employer considers making you leave because of disability they should have thoroughly explored all other options to make reasonable adjustments to keep you at work.
This includes looking at any changes they could make to your working arrangements, or the physical features of the workplace, or whether they can provide additional equipment.
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 your impairment is becoming more severe for you but this is not impacting on your ability to do the job then this should not be part of a decision about whether you continue to work.
However, if an impairment is making it harder for you to do your job, then the first step your employer must take is to consider what reasonable adjustments could be put in place to keep you at work.
If your employer does not look at reasonable adjustments, then requiring you to stop working may be unlawful disability discrimination.
Reasonable adjustments will vary according to the situation and your particular needs. However, things to consider could include:
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.
In appropriate cases, as well as discussing it with you themselves, your employer may wish to consider seeking expert advice on the extent of your 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, your employer should be cautious about relying on medical advice alone to assess your 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.
If after consideration of:
it is not possible for you to continue at work, then it may be appropriate for you to leave