“[The Team] seem to be able to make sense of, what seems sometimes, a difficult and complex situation – this gives a deep feeling of confidence in [their] abilities”

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An individual is ‘disabled’ for the purposes of the Equality Act where they have a physical or mental impairment that has a substantial adverse impact on their ability to carry day to day activities, which is long term (i.e. has lasted or is likely to last at least 12 months).

This is a legal test, not a medical one, and whilst it is important that each element of the test is made out, the bar is relatively low: ‘substantial adverse impact’ means ‘more than minor or trivial’ and ‘day to day activities’ includes activities such as sleeping, eating, concentrating, travelling to work etc. Whether or not there is a substantial adverse impact is assessed discounting the impact of any medication or treatment, so, if an individual has been experiencing symptoms for a while and is on medication to manage those symptoms, then it is likely they would be classed as ‘disabled’.

Where a business is aware, or ought reasonably be aware, of an employee’s disability, it is under additional obligations:

  • not to discriminate because of something arising from disability save where to do so is a proportionate means of achieving a legitimate aim; and
  • to make a reasonable adjustment to any provision, criterion or practice applied generally, which puts the disabled employee at a substantial disadvantage, and where making that adjustment would alleviate the disadvantage.

Understood properly, these additional obligations present a helpful road map for employers to negotiate the complexities around managing disabled employees. We understand the detail of the law in this complex area, and we work with employers to help them engage in an effective dialogue on these matters.

No two cases are the same and we provide tailored advice taking into account the specific circumstances of the relevant individual’s health and the particular needs of the business, to help the parties arrive at a solution which works for both sides. In some cases this will be on-going employment with some adjustments that can reasonably be accommodated by the employer. However, in circumstances where on-going employment may not be tenable, we assist employers with robust capability and sickness absence management processes to manage exits where appropriate whilst minimising the exposure to potential claims.

We are passionate about helping businesses understand how they may reasonably be able to accommodate different ways of working, to improve the experience of disabled individuals in the workplace but we understand that on some occasions the challenges being faced by an employee mean they are not alone to fulfil the requirements of their role and in those circumstances we can help the business to secure an appropriate exit.

Examples of our work:

  • Advising international publisher on dismissal of senior employee absent for stress and anxiety to include disability discrimination, reasonable adjustments and the interplay with permanent health insurance benefits. Successfully navigating a capability dismissal with no claim arising.
  • Acting for a foundry in defence of multiple claims in the Employment Tribunal for disability discrimination on the grounds of stress and anxiety and constructive unfair dismissal, securing settlement upon a nominal payment by our client.
  • Acting for a print media distributor to advise on a complex capability exit concerning a Senior Manager who had transferred under TUPE with substantial sickness and contractual redundancy benefits and assisting with the management of ongoing absences and ultimately a capability dismissal.
  • Acting for a media advertising company in relation to an under-performing employee diagnosed with cancer (an automatic disability for the purposes of the Equality Act). We assisted our client in addressing its performance concerns by transitioning the employee on their return from long term sickness absence, into a different role on a lower salary, with the agreement of the employee.
  • Advising property management company on capability issues arising with employee diagnosed with cancer whilst in a key role requiring intense period of work. Assisted with reallocation of duties and appropriate change of role for relevant employee when reasonable adjustments were not possible in the particular role.  No claims arising.
  • Advising law firm on absenteeism and conduct issues arising with a member of staff struggling with alcohol abuse issues. Advised on appropriate support but ultimately capability dismissal with no claims arising.
  • Advising pharmaceutical research company on regular ad hoc lateness and absences from work for genuine but various health and personal issues, ultimately securing capability dismissal with no claims arising.

Contact our Employment Team
telephone: 020 7691 4000
or email: enquiries@edwincoe.com

It is really a very dynamic professional team of people extremely serious and dedicated.

The Legal 500 2023

It is really a very dynamic professional team of people extremely serious and dedicated.

The Legal 500 2023

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Capability Dismissals and Disability Discrimination

Strategic employment advice is a key contributor to any business and assists in planning and decision-making. Employees are a valuable asset and the ever-changing environment of employment law means it is vitally important that employers stay abreast of changes and understand their full impact.

At Edwin Coe our employment lawyers recognise the need for timely commercial advice and solutions to employment law issues. We provide a value-for-money, partner-led service, and our specialist team of employment lawyers advise companies, senior executives and individuals on all contentious and non-contentious employment and partnership matters.

As experts in employment law, we work with our clients to resolve their employment issues and have Employment Tribunal and High Court experience. Our employment lawyers are ranked in Chambers & Partners and in Legal 500.

Our clients include large multinationals, start-ups, SMEs, senior executives, individuals and insolvency practitioners. We also work with global clients and have a full understanding of cross-border and cultural issues. Above all, we work with our clients in strictest confidence, to facilitate solutions and achieve their objectives whilst providing a clear and competitive cost structure.

Other Edwin Coe services that may be of interest include:  Immigration, Corporate & Commercial, Private Client and Tax.

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