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Employee dismissal and the question of disability
Heritage Homecare Limited (“HHL”) has successfully appealed a finding of ‘direct disability and discrimination arising from disability’ due to the failure of the employment tribunal to properly explain its decision.
The case has been remitted for a complete re-hearing, but it appears the danger signs were missed by HHL at the time. The employee was employed as an office co-ordinator from May 2012 to November 2012 on a fixed term contract. The contract was extended until 13 February 2013 but the employee was then given one month’s written notice, to expire on 11 March 2013. This was after she had sent in a further sick note stating “anxiety and depression”.
Lesson one is that the non-renewal of a fixed term contract is, in law, a dismissal. The employee had less than two years’ service so could not bring a claim of unfair dismissal, but was subsequently held to be “disabled” for the purposes of the Equality Act 2010; such claims do not have a minimum length of service requirement.
One of the successful points of appeal was whether HHL had actual or constructive knowledge of the employee’s disability, which is something required for her claim to succeed. As the evidence suggests HHL was provided with more than one sick note stating “anxiety and depression”, it may therefore struggle at the re-hearing to argue that it did not have constructive knowledge. In circumstances such as this, an employer is on reasonable notice and cannot just claim ignorance.
Lesson two is that in any sickness or sickness-related dismissal, or indeed anything that amounts to detrimental treatment, or which might be inferred or construed as such, employers need to consider the disability angle.
If an employee is disabled then any less favourable treatment or dismissal because of the disability will be discrimination, as will any discrimination related to it which is not justified. There will also be the need to consider reasonable adjustments. “Disability” requires a 12 month physical or mental impairment and where more than one sick note refers to the same condition or symptoms then the disability alarm bells should ring.
Contact us for advice regarding any employment related matter.
Tim Ogle
01245 453840
tim.ogle@birkettlong.co.uk
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.
