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:
- reasons and procedures
- if you are a disabled person and your employer wants to dismiss you
- if you are a disabled person and your employer wants to dismiss you because they say you can no longer do the job
Fair and unfair dismissal
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.
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.
- 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: 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:
- They must not treat you unfavourably because of something connected to your disability where they cannot show that what they are doing is objectively justified. This is known as discrimination arising from disability. This only applies if they know or could reasonably be expected to know that you are a disabled person.
- If you are a disabled person, your employer must also make reasonable adjustments if these are needed to remove barriers you face in doing your job. What this means is that they must first consider what adjustments would remove the barriers for you and second, if they are reasonable adjustments, they must make them. Would a reasonable adjustment remove the reason you are being considered for dismissal?
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:
- consider if there are reasonable adjustments which would mean you could return to work and continue to work for them (even if not in exactly the same job), and
- make sure they are not treating you unfavourably because of something connected to your disability, such as a need for regular breaks, if they cannot objectively justify their approach.
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:
- A phased return to work if you have been off for a long while.
- Part-time or flexible hours if you are finding full-time working difficult.
- Changes to premises, such as installing a ramp, improving signs, or moving your desk nearer essential office equipment.
- Provision of additional equipment, such as specific computer software or hardware if this is relevant to your job.
- Additional support (for example, a part-time reader if you have a visual impairment to help manage the volume of written information which you have to get through).
- Reassigning some elements of your job to another member of staff or transferring you to another role in the 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.
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:
- the impact of your disability on the job
- any reasonable adjustments
- discussions between you and your employer, and
- (where appropriate) expert advice
it is not possible for you to continue at work, then it may be appropriate for you to leave
Last Updated: 30 Dec 2014