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When employer fails to consider alternatives to dismissal

View profile for Chris Amys
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Dr Ali, a GP at the Bedford Family Practice went on long-term sick leave following a heart attack and an ongoing heart condition. His employer received a medical report confirming it was unlikely Dr Ali would be able to return to work full-time, but might be able to return to work on a part-time basis. Dr Ali was subsequently dismissed on the grounds of capability.

Claims of unfair dismissal and disability discrimination were subsequently issued in the Employment Tribunal by Dr Ali.

The Employment Tribunal held Dr Ali’s dismissal was procedurally unfair because his employer did not consider whether he could return to work on a part-time basis. However this point was not discussed in relation to the disability discrimination claim and therefore the tribunal concluded the potentially discriminatory treatment was justified on the basis that he could not return to work as a full-time GP.

Dr Ali appealed to the Employment Appeal Tribunal.

Under s15(1) of the Equality Act 2010, discrimination arising from a disability occurs when an employer treats an employee unfavourably because of something arising in consequence of the employee’s disability and the employer cannot show the treatment is a proportionate means of achieving a legitimate aim.

The Employment Appeal Tribunal held that s15(1) was incorrectly applied in the Employment Tribunal. The Bedford Family Practice failed to consider Dr Ali’s ability to return to work on a part basis, and therefore they could not show Dr Ali’s dismissal was a proportionate means of achieving a legitimate aim.

The case has been remitted to the Employment Tribunal to determine whether the Bedford Family Practice could have accommodated Dr Ali on a part-time basis.

Employers who fail to consider alternatives to dismissal when dealing with an individual on long-term sickness absences, especially employees with a disability, could render a dismissal unfair and discriminatory. Nevertheless, it is still possible for employers to dismiss employees in these circumstances, as long as a fair and reasonable procedure has been followed, and therefore it is highly advised to seek legal advice before undertaking such a process.

Firms looking for advice on HR and employment law issues relating to long-term sickness absence and disability discrimination claims can speak to Miss Sally Morris via 01905 610410 or email sally.morris@mfgsolicitors.com.

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