How do we dismiss an employee where the DDA 1995 applies?Posted in : Seamus Says - Employment Law Discussion on 2 March 2018
Q: How do we dismiss an employee where the DDA 1995 applies in Northern Ireland?
Seamus: Obviously, the employer needs to be careful when they’re dealing with any employee who has a protected characteristic, so, whether it’s their disability or their sexual orientation or whatever it is. The protected characteristics, there’s a sort of flag up there in terms of saying we need to be careful how we go about this. There are various ways for an employer to dismiss an employee, but I think this question is really focusing down on the potential dismissal, where the employee is aware that there is a disability and awareness is an important point.
Scott: Okay. So, let’s assume the employer knows this person is disabled. What do they have to do in particular in relation to a disabled employee that they wouldn’t have to do in my case, say?
Seamus: Well, essentially, when the employer knows the employee is disabled, they’re potentially being disadvantaged and the employer has a duty under the DDA to make reasonable adjustments to remove that disadvantage and essentially assist the employee in remaining in employment. If the employee is dismissed because the employer has failed to make the reasonable adjustment, it’s going to be a case of disability discrimination.
So, really what you have to do is look at what reasonable adjustments can be made here in order to facilitate this employee. The types of things that we’re talking about, just to mention that, would be if the employee could have maybe lighter duties or look at a different role for the employee, maybe flexible working for that employee or making adaptions to the workplace is another one, obviously, or providing sometimes specialised equipment for the employee to be able to do the job.
The reality is and the bottom line, I think, is if there is a high threshold here that you do have to consider other reasonable adjustments that are possible. If you do all of that and none of them work, then you’re at the point where it’s going to be fair to dismiss. But you must help them through that process where you’ve looked at the reasonable adjustments and teased out whether there is a possibility of these assisting the employee.
Scott: I suppose there’s a difference between a long-term ill health dismissal when it isn’t a disability dismissal. It’s that you don’t have to do the reasonable adjustments, but you still have to look at all the alternatives. It’s very similar to saying, “Is there anything I can do to that can save this person’s job and make them able to do this job?”
If they’re not able to do the job, they’ll be dismissed. If they are, by making those reasonable adjustments or some kind of an accommodation, whether it’s long-term sake or whether it’s defined as disability, then the employer has to consider those. If they consider them and then reject them because they’re not practical, that’s okay, but if they don’t consider them at all, there’s a very good chance you’re going to lose your case.
Seamus: Absolutely. The thing is as well that there’s various steps the employer can take. In terms of the workplace environment, they can bring in an occupational therapist. They can look at the desk. They can look at things like the access and all those sorts of issues.
A lot of the time, what will happen will be that the person will be sent to occupational health or the specialist consultant will be asked is there any possible adjustments can be made. Really important to meet with the employee and discuss those with the employee. There’s no point to the employer dreaming all this stuff up in their head and deciding it. They have to consult with the employee about it and be sensible about what might and what might not work for them.
One other point that I just wanted to mention is that if the employer dismisses the employee because of something that’s connected to their disability, that also could be disability discrimination on the basis that it’s arising from their disability. So, really, the employer has to look to set about justifying and showing the good business reasons for the dismissal after they’ve applied these reasonable adjustments and that there’s none of them that could be facilitated for the employee.
It certainly is a tricky one. When it comes down to conduct, I suppose I just want to maybe mention as well that when the conduct is a problem and the conduct is as a result of the disability, again, you’re going to have to look at reasonable adjustments in terms of the employee. It’s not just sufficient to say, “Well, you’ve done this. So, you’re under our policy and procedure. That’s gross misconduct and you’re dismissed.” You really do have to give consideration to and have cognisance, I suppose of the disability, the reasons that might be impacting upon the conduct and apply those reasonable adjustments again.
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