Dismissal on Grounds of Disability

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Key points
§  Add a note hereIt is unlawful for an employer to discriminate against a disabled person by dismissing him (or her), or subjecting him to any other detriment (section 4(2)(d), Disability Discrimination Act 1995).
§  Add a note hereIt would be a foolhardy employer indeed who would dismiss a disabled employee (or select him or her for redundancy ahead of other more suitable candidates) because of that employee's disability, and for no other reason. If the purported reason for the dismissal had to do with the employee's conduct, capabilities, attendance record, lack of qualifications, or 'some other substantial reason of a kind such as to justify the dismissal, it will be for the employer to satisfy an employment tribunal that he had acted reasonably and fairly in all the circumstances. In other words, an employer's decision to dismiss a disabled employee is likely to be more closely scrutinised for evidence of unlawful discrimination than would be his decision to dismiss an able-bodied employee. In British Sugar plc v Kirker [1998] IRLR 624, EAT it was held that an employee found to have been unlawfully dismissed on grounds of disability, would almost certainly be held to have been dismissed unfairly. However, there might well be circumstances associated with long periods of sickness absence (caused or contributed to by an employee's disability) which might well justify the dismissal of such an employee, so long as the employer can demonstrate that he (or she) had done all that could reasonably be expected of him to accommodate the employe.
Add a note hereComplaints to an employment tribunal
§  Add a note hereA complaint of unlawful discrimination under the 1995 Act must be presented to an employment tribunal within three months of the alleged unlawful act (ibid. section 8). A complaint under the 1995 Act may be brought regardless of the age or length of continuous service of the employee in question.
§  Add a note hereTo enable a complainant (or would-be complainant) to prepare his (or her) case, the Disability Discrimination (Questions & Replies) Order 1996 provides him with a legal opportunity to question the employer (in the person of the personnel manager or whomever) asking him to explain his apparently unlawful and discriminatory actions in relation to the matter complained of. If dissatisfied with the employer's written explanation (if, indeed, an explanation is offered), the complainant may admit the explanation (or failure to explain) as evidence in any ensuing proceedings before an employment tribunal. The form prescribed for this purpose is Form DL56 which, with its accompanying explanatory notes, is available on request from the Disability Rights Commission on 0870 600 5522.
§  Add a note hereIf an employment tribunal upholds a complaint of unlawful dismissal on grounds of disability, it will make a declaration to that effect and will order the employer to pay compensation to the employee (that may include compensation for injury to feelings). The amount of the compensation will be calculated by applying the principles applicable to the calculation of damages in claims in tort or (in Scotland) in reparation for breach of statutory duty (ibid. section 8(3) and (4)).
§  Add a note hereThe tribunal may also recommend that the employer take appropriate steps to remedy the situation which prompted the employee to pursue a complaint of unlawful dismissal. Those steps may include adjustments to the workplace; adaptation of, or modifications to, plant and equipment (including means of access and egress); the reallocation of certain duties, and so on. If the employer fails or refuses to comply with any such recommendation, the tribunal may increase the amount of compensation payable to the complainant (ibid. section 8).

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