While ‘incapacity dismissals’ may be enforced, legislation around them can be confusing and failure to comply with any element of the process can result in your company being hauled before the Workplace Relations Commission (WRC) and costly litigation.
A very real and relevant illustration of what can happen when processes are poorly adhered to can be seen in the case of a man who was dismissed in 2013, on the grounds of performance and disciplinery issues, while still on probation. The complainant, who was suffering from depression at the time, brought a case before the WRC on the basis that he was the subject of discriminatory dismissal on the grounds of disability. Earlier this month the WRC ruled in his favour, awarding him €18,000.
Below we look at some of the key legal issues, which employers should focus on to avoid falling fowl of the WRC and adding litigation to the cost sickness absence.
Addressing the fact that the dismissal was, in reality, on the grounds of disability, the WRC acknowledged that section s.16 of the Employment Equality Acts 1998 – 2011 provides that an employer is not obliged to retain an employee who is not fully competent and capable of doing the job he or she is required to do.
Employment Equality Acts 1998 – 2011, provides that all dismissals must be effected for a potentially fair reason. For sickness absence, that reason could be any one of the following:
- Conduct - in cases of persistent unauthorised absence or where illness has been faked.
- Capability - in cases where lengthy or frequent absences have affected the employee’s ability to do their job.
- Some other substantial reason - perhaps where absence is unreasonably affecting business efficiency.
Additionally, as outlined in a Personnel Today article, the following factors must be taken into consideration:
A fair dismissal takes place when the employer is considered to have acted reasonably in treating the reason for dismissal as a sufficient reason for dismissing the employee”. At the very least, this will involve a reasonable investigation of all relevant circumstances and a discussion with the employee who is given the opportunity to have his/her say.
Employers may be tempted to cut corners with employees who have accrued less than two year’s continuous service on the assumption that they will be unable to bring a claim. This is a risky approach. Many rights (including some that relate to unfair dismissal) accrue to employees from the commencement of their employment. Until the reason for any absence has been established by way of a fair and reasonable investigation, hasty decisions should be avoided.
When asked to decide whether a capability dismissal is fair, an employment tribunal will consider the following key points:
- The nature of the employee’s illness.
- The prospects for that employee returning to work.
- The treatment of other employees in the same or similar circumstances.
- The need for the employer’s business to cover the work of that employee.
- The employee’s length of service.
- Whether the employer considered the availability of any other more suitable employment.
- Whether the illness/injury resulted from the conduct of the employer.
Medical evidence will be of great importance but it must be remembered that:
- Contracts of employment should be reviewed to assess the extent to which employers are entitled to obtain medical evidence or to commission medical reports about the employee concerned.
- However clear the evidence, it should always be discussed with the employee.
- A specialist/expert report should be preferred over general opinion.
- The decision to dismiss is ultimately a managerial, not a medical, one.
Employers must be aware of the link between sickness absence and disability. If a worker is classed as disabled, he/she enjoys the following rights without any period of qualifying service:
- Protection from direct and indirect discrimination.
- Protection from discrimination arising from his/her disability.
- The right to reasonable workplace adjustments to help to overcome any “substantial disadvantage”.
- Protection from victimisation and harassment.
Periods of sickness absence are common during pregnancy. Dismissing a worker or subjecting her to any detriment concerning pregnancy/maternity-related illness that occurs during her “protected period” is unlawful under assorted legislation. A “detriment” would include issuing a warning under an employer’s sickness absence procedure.
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