Tribunal Report: Charities can fairly dismiss an employee on sick leave

Dismissals for ill health should always be the last resort, but they are possible, says Victoria Willson

Victoria Willson
Victoria Willson

The Employment Appeal Tribunal's recent judgment in the case of Conway v Community Options Ltd illustrates how charities can fairly dismiss an employee on long-term sick leave.

The story

Community Options is a charity providing services to people with mental health issues. It employed Mr G Conway as a support worker in September 2007. In December 2009, he went on sick leave for anxiety and depression. It was initially indicated that he would be able to return to work with time and treatment.

In October 2010, Conway lodged a grievance relating mainly to his manager, who had since left the organisation. The charity acknowledged some of Conway's criticisms and confirmed that they would be addressed.

In March 2011, after further medical evidence, Conway told the charity, which had advised him that dismissal was a possibility, that there was no change in his situation. Community Options dismissed him. After his appeal was rejected, Conway brought claims of unfair dismissal and disability discrimination, including failure to make reasonable adjustments.

The legal decisions

It was not in dispute that Conway was disabled. At a pre-hearing review in September 2011, the employment tribunal struck out his claims on the grounds that they had no reasonable prospect of success. It is rare for tribunals to exercise this power, especially in discrimination claims where, usually, there is a factual dispute.

Conway appealed, arguing that his absence was due to a lack of support from management, amounting to a failure to make reasonable adjustments. The Employment Appeal Tribunal upheld the tribunal's decision, citing the unchallenged medical evidence that confirmed there were no adjustments that could be made to enable him to return, the fact that his grievance had been dealt with, Conway's own pessimism regarding the prospect of a return and the full consultation, which Community Options had carried out before the dismissal.

Lessons for charities

Dismissals for ill health should always be the last resort, particularly if the employee has a disability, because discrimination claims - for which compensation is uncapped - could arise.

Charities must obtain up-to-date medical evidence from an appropriate expert, having asked the correct questions of that expert, and should consult the employee. They should also follow the Acas Code of Practice and their own internal procedures.

Charities should be alert to the risk of 'discrimination arising from disability' claims - a new concept introduced by the Equality Act - where, for example, they would dismiss a non-disabled employee after the same level of absence, but where the disabled employee had reached that level as a consequence of disability. It is possible to defend such claims by showing that the dismissal was "a proportionate means of achieving a legitimate aim". Whether or not this test can be met will depend upon the circumstances of the case and legal advice should be sought.

Victoria Willson is a partner at Levenes Employment, third sector specialists

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