Weekly dilemma – dismissal for high level of sickness absence

One of my employees, who is disabled, has taken an unacceptable amount of sick leave recently. Can I dismiss her lawfully?

While it is possible to fairly dismiss an employee on the ground of incapacity due to ill health, it is vital that you follow a fair procedure. Assuming that the employee in question has more than 12 months’ service, she will have the right to claim unfair dismissal.

If you decide to dismiss, you will need to show that you acted reasonably in treating ill-health incapacity as a sufficient reason to justify the dismissal. It is imperative that you consult with the employee and obtain medical evidence regarding the condition in order to reach the conclusion that the business can no longer employ her. You will also need to know whether or not the sick leave is likely to continue at the same levels, and must follow the principles of the ACAS Code of practice on disciplinary and grievance matters in deciding whether or not to dismiss and, if you decide to do so, in carrying it out.

As you accept that your employee is disabled, you will also have to ensure you are fully compliant with disability discrimination legislation. This has been overhauled after the recent introduction of the Equality Act 2010 (EA), which supersedes the Disability Discrimination Act 1995 (DDA). Which regime applies depends on when the potentially discriminatory treatment took place.

There are three potentially relevant types of discrimination under the EA:

  • Direct discrimination, which is treating the employee less favourably than you would treat another on grounds of disability. It is important that your decision to dismiss is consistent with how other employees were treated in similar circumstances.
  • Discrimination arising from disability. Historically this argument was difficult to prove as, following the House of Lords decision in London Borough of Lewisham v Malcolm, an employee had to show that they had been treated less favourably than a non-disabled person with similar amounts of sick leave. The EA alters the position in favour of the employee, making it easier for them to successfully claim discrimination on the basis of a disability. To protect yourself from a claim you must ensure that you can justify your decision to dismiss and show that the treatment is a proportionate means of achieving a legitimate aim (a more rigorous test than under the DDA).
  • A failure to make reasonable adjustments. You are obliged to make reasonable adjustments that would prevent the employee being put at a disadvantage, in comparison to others, by a provision, criterion or practice. This might mean waiting longer before dismissing the employee, or taking specific steps to help her back to work. Consult with your employee and obtain medical advice as to whether or not there are any adjustments that could be made which would prevent any disadvantage.

Nathan Donaldson, partner, employment, DWF

Get answers to more questions on the Equality Act 2010:

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