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Termination of employment and disability discrimination

This advice applies to Wales

If you’ve been dismissed because you can’t do your job because of your disability or you’ve been off work sick, it may be unlawful disability discrimination under the Equality Act 2010.

Read this page to find out more about disability discrimination if you’re dismissed.

Can an employer dismiss you if you’re disabled?

Your employer can sometimes dismiss you because of your ill health if you’re no longer capable of doing the job you’re contracted to do. But if your condition is a disability under the Equality Act 2010, it may be disability discrimination if you’re dismissed because of it.

When might your dismissal be a failure to make reasonable adjustments?

If you're disabled you may be disadvantaged by something at work - for example, a physical feature of the workplace, the lack of adapted equipment or accessible materials, or a policy or procedure followed by your employer.

If your employer knows, or should know, that you're disabled and that you're being placed at a disadvantage they have a duty under the Equality Act to make reasonable adjustments to remove the disadvantage and to help you to stay in employment.

If you're dismissed because your employer’s failed to make reasonable adjustments, it's disability discrimination.

When might your dismissal be discrimination arising from disability?

If your employer dismisses you because of something which is connected to your disability, this could be discrimination arising from disability. Discrimination arising from disability is unlawful under the Equality Act.

The dismissal will not be unlawful discrimination if your employer can justify it by showing they have a good enough business reason for dismissing you. If there were reasonable adjustments that your employer should have made that would have prevented the dismissal, your employer will find it hard to justify dismissing you.

The dismissal will not be unlawful discrimination unless your employer knows, or could reasonably be expected to know, that you're disabled.

Example

You work for a small company. Your employer starts to manage your performance when your sales figures start to fall. You tell your employer you've been diagnosed with repetitive strain injury which is slowing you down when using the IT system. Your employer says she can’t afford to buy accessible IT equipment and after your figures continue to drop, you're dismissed.

Your dismissal is because of your reduced performance. This is something which is connected to your disability. Your employer tries to justify the dismissal by saying that the business operates on very small profit margins and she needs to employ people who are high performers.

However, it would not have cost the company very much to purchase the accessible IT equipment, and it could have applied for a grant to do so. It would have been reasonable to buy the equipment and it would have enabled you to keep your job. The dismissal is therefore likely to be unlawful discrimination.

When might your dismissal be direct disability discrimination?

If your employer dismisses you simply because you're disabled, this is direct disability discrimination. It's also direct discrimination if you're dismissed because of incorrect or stereotypical assumptions about people with your disability, or how your disability will affect you.

Example

You work in a betting shop. You're HIV positive but take medication and have no health problems. Your condition has no effect on your performance, attendance or conduct. Your employer finds out that you're HIV positive and sacks you. This is direct disability discrimination.

You’re dismissed because of sickness absence

If you're dismissed because of sickness absence which is because of your disability, your dismissal may be discrimination arising from disability. However it won't be discrimination if your employer can justify the dismissal. But your employer must always consider if there are any reasonable adjustments that would enable you to return to work - for example, lighter duties, a different role, flexible working, making adaptations to the workplace or providing specialised equipment.

You're dismissed because of your conduct

If your employer's identified issues with your conduct, they should consider whether your behaviour is connected your disability. Otherwise, it could be discrimination arising from disability if you’re dismissed.

If your employer identifies issues with your conduct which are connected to your disability they should consider if they can make any reasonable adjustments that would allow you to do your job.

Disciplinary action

If your employer’s started disciplinary action against you, they should consider what reasonable adjustments they need to make to their disciplinary procedure to avoid you being disadvantaged by it. For example, they may need to postpone the disciplinary hearing until you’re better or move the hearing to a neutral venue.

If they don’t do this, you could make a claim for failure to make reasonable adjustments if - for example, it means you can’t attend the disciplinary hearing and you’re then dismissed.

Can you claim unfair dismissal?

If you're disabled and you’ve been dismissed, you may also be able to claim unfair dismissal. You should seek advice from an experienced adviser - for example, at a Citizens Advice Bureau.

Here are some things to consider if you want to make a claim:

  • if your claim for unfair dismissal is successful, the tribunal can order the employer to take you back
  • if you’re unsuccessful in one claim, you may win the other
  • in a discrimination case, the tribunal can make an order requiring the employer to pay you compensation for financial loss and for injury to feelings. Unlike for unfair dismissal, there’s no cap on the amount you can be awarded.

Next steps

Other useful information

Equality Advisory Support Service (EASS)

If you have experienced discrimination, you can get help from the EASS discrimination helpline.

Equality and Human Rights Commission (EHRC)

You can find useful information about discrimination on the EHRC website at

Acas

Acas works with both employers and employees to solve workplace problems.

You can phone the Acas helpline on: 0300 123 1100 and speak to an adviser about your employment problems. The helpline is open 8am-8pm Monday to Friday and 9am-1pm on Saturdays.

You can find useful information about how to sort out work-place problems on the Acas website at

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