Has the Equality Act made it impossible to dismiss a disabled employee?
15th January, 2012 by Brian ButlerWe have a disabled employee who may have to be dismissed due to lack of capability. The accepted opinion is that the law is so complex that this is virtually impossible. What does the law actually state and indicate why it is so difficult to dismiss a disabled employee?
Answer: A statement of the law is Section 15 Equality Act 2010:
Discrimination arising from disability
(1) A person (A) discriminates against a disabled person (B) if:
(a) A treats B unfavourably because of something arising in consequence of B’s disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
The reason why this kind of discrimination is particularly complex is because ‘discrimination arising from disability’ was a newly formulated test introduced after the House of Lords decision in Lewisham LBC v Malcolm. It was felt that this case shifted the balance of protection too far away from disabled people. Section 15 Equality Act 2010 creates a broad protection against being treated unfavourably ‘because of something arising in consequence of’ the person’s disability, but subject to the employer having an ‘objective justification’ defence if it shows its action was a legitimate means of achieving a legitimate aim. Section 15 will apply, for example, where a disabled person is dismissed due to a long absence from work which resulted from their disability – the issue will be whether the employer can show the ‘objective justification’ defence applies. No dismissal will be justified unless the employer has met the duty to take reasonable adjustments.
The duty can apply where a disabled person is put at a ‘substantial’ disadvantage in comparison with non-disabled people by a ‘provision, criterion or practice’ or by a physical feature. The employer’s obligation is, broadly, to take such steps as it is reasonable to have to take to avoid the disadvantage.
As can be seen from the above summary, disabled employees have been given increased protection as a result of the changes introduced by the Equality Act 2010.
How the Act will be interpreted will depend on future cases. It is a complex area and any dismissal should only be contemplated with legal advice.