Case law: Employers should consider part-time work for disabled employees returning from long-term sick leave
Employers deciding whether to dismiss a disabled employee who is on long-term sick leave should ensure they consider a part-time return to work, particularly where this is the advice of the employee's GP and/or other medical professionals. If they don't, they risk a disability discrimination claim, a recent ruling makes clear.
This update was published in Legal Alert - September 2018
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A doctor was signed off on long-term sick leave after a heart attack. His GP and cardiologist advised that he was unlikely to be able to return to work full-time, but could be phased back into part-time work.
He was agreeable to this, but he then injured his shoulder and was signed off for a further six weeks. On expiry of that period, his employer dismissed him with immediate effect on grounds he was unable to return to full-time work. He claimed direct disability discrimination.
It is direct disability discrimination if an employer treats an employee with a disability less favourably:
- because of something arising in consequence of the employee's disability; and
- cannot show that the treatment is a proportionate means of achieving a legitimate aim
- knows, or could reasonably be expected to know, that the disabled person has a disability
However, it is a defence if the treatment can be justified as a proportionate means of achieving a legitimate aim.
The Employment Tribunal (ET) ruled that the dismissal was unfavourable treatment because of the employee's disability. However, it found that the treatment was justified as a proportionate means of achieving the legitimate aim of providing patients with the best possible care.
However, the Employment Appeal Tribunal said the ET had not applied the test correctly. It had not considered whether its legitimate aim could have been achieved by a return to work as a part-time employee – a less discriminatory approach – even given the difficulties of maintaining continuity of care if a doctor was only working part-time, and the associated costs and admin for the employer.
The issue was sent back to the ET to reconsider the issue of proportionality.
Employers in a similar situation should also consider other less discriminatory options, such as redeployment, different duties, working from a different location (including at home), training or other support. It is often sensible to discuss options with the employee.
- Employers considering whether to dismiss an employee who is on long-term sick leave should ensure they consider a part-time return to work (and any other less discriminatory solution), particularly where this is advised by the employee's GP and/or other medical professionals, or risk a disability discrimination claim
Case ref: Ali v Torrosian and others (t/a Bedford Hill Family Practice) UKEAT/0029/18/JOJ
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