Capability Dismissals and Disability Discrimination

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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.