Disability Discrimination and Ill-health Capability Dismissals

13 July, 2018

This week, the Employment Appeal Tribunal (EAT) served a useful reminder of how the handling of a dismissal on grounds of ill-health capability may give rise to valid claims for disability discrimination.

Ail v Torrosian: the background

In Ali v Torrosian and others (t/a Bedford Hill Family Practice), Dr Ali was signed off from his role as a GP on long-term sick leave basis after a heart attack. His employer accepted the medical opinion that he was unlikely to ever be fit again for full-time work. Despite this, Dr Ali’s medical report confirmed his fitness to work on a phased, part-time basis. Before such a return could take place, Dr Ali suffered an unrelated shoulder injury and was signed off work for a further period of leave.

Dr Ali was invited by his employers to a medical capability meeting. They discussed future adjustments to Dr Ali’s hours and duties and Dr Ali provided a doctor’s certificate in respect of his shoulder injury. Two weeks later, Dr Ali’s employers dismissed him on the grounds of capability.

Dr Ali brought claims in the Employment Tribunal of unfair dismissal and disability discrimination, specifically a claim for discrimination arising from disability. This occurs where an employer treats an employee unfavourably because of something arising in consequence of their disability, and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim.

Disability discrimination?

The Employment Tribunal concluded that Dr Ali had been unfairly dismissed due to shortcomings in the procedure followed by his employer in reaching its decision to dismiss.  However, the claim of disability discrimination was rejected by the Tribunal. This was because although Dr Ali’s dismissal was unfavourable treatment which arose “in consequence” of his disability, his employer was justified in the dismissal by its legitimate aim of ensuring patient care.

Dr Ali appealed to the EAT, which allowed the appeal. The EAT held that the Employment Tribunal had failed to consider less onerous ways by which Dr Ali’s employers could achieve its legitimate aim. One such alternative had already been suggested by medical evidence: a phased return to part-time work. The claim was therefore remitted to the Employment Tribunal to reconsider the question of proportionality, in light of its finding that part-time working could have been accommodated.

The importance of reasonable adjustments

This case highlighted the failure by Dr Ali’s employers to consider and make reasonable adjustments before reaching its decision to dismiss him. Ultimately this failure indicated that his dismissal was not proportionate, and so discriminatory. The legitimate aim of ensuring the best care for patients might have been achieved by other means, consistent with the duty to make reasonable adjustments, which would not involve the ending of Dr Ali’s employment.

All employers which are considering the dismissal of a disabled employee on ill-health capability grounds need to review whether they have met their duty to make reasonable adjustments, and properly viewed dismissal as very much the last resort.

Typical adjustments which employers may consider making in this context include changes to hours or duties, allowing working from home, or redeploying to alternative roles. What adjustments will be reasonable in each case will very much depend on the particular circumstances, and employers are strongly advised to take guidance from their occupational health advisers.

Please contact our Employment team if you require guidance and support in managing the long-term sickness absence of your employees and protecting your organisation against disability discrimination and unfair dismissal risks.

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