Having an employee who is unable to do their job due to ill health is an incredibly difficult situation for any employer to be in. While you may be empathetic to your employee’s situation, continuing to pay someone for a role that they cannot fulfil can be financially catastrophic, particularly for small businesses with limited resources. As a result, many small business owners seek advice from our experienced HR consultants regarding their legal position in these circumstances, asking, ‘What is the law governing dismissal on grounds of capability due to ill health UK?’
Call us now on 01491 598 600 or Click Here to Make An Enquiry and we will be delighted to help you.
What Is The Law Governing Dismissal On Grounds Of Capability Due To Ill Health UK?
Under UK law, any employee dismissal must be fair, meaning that you must have a valid and lawful reason for terminating the employee’s employment. One reason that can be considered fair in the right circumstances is that the employee is incapable of doing their job. Capability refers to an employee’s ability to perform their job effectively.
It follows that an employer may, in principle, dismiss an employee on capability grounds in the UK if the employee cannot carry out their duties due to illness or a health condition.
However, whether or not such a dismissal will be lawful depends on a variety of factors unique to the situation, including the nature of the employee’s condition, the demands of the job they are employed to do, the length and frequency of the employee’s absences, and how their illness and capability issues are affecting your organisation and other members of staff.
It is important to note that dismissal on the grounds of capability due to ill health must not be influenced by any protected characteristic, like a disability, under the Equality Act 2010. If the employee is disabled, you are legally obliged to make reasonable adjustments, such as providing special equipment or offering flexible working hours, to facilitate the employee carrying out their role. Only if those reasonable adjustments fail to assist can you lawfully consider dismissing the employee. That said, if the employee’s ill health renders them unable to do the job they were employed to do and no reasonable adjustments are available or have failed to help, you may be able to dismiss them fairly, notwithstanding their disability.
When considering whether a proposed dismissal on the grounds of ill health is fair, taking expert advice is highly advisable. This is an incredibly sensitive aspect of HR practice and getting it wrong exposes your organisation to the risk of a tribunal claim being made against you, as well as reputational harm.
What Should Employers Do To Protect Themselves When Considering A Dismissal On Grounds Of Capability Due To Ill Health UK?
While it can be lawful to dismiss someone on capability grounds due to ill health, doing so is a serious step, and one which must be managed very carefully to ensure compliance with the law.
Before proceeding with a dismissal of this nature, you should take the following steps:
- Obtain medical reports from the employee’s GP or specialist. The employee has the right to see these reports before you do.
- Refer the employee to occupational health for an independent assessment.
- Consider the likely duration of the employee’s illness and its potential impact on their ability to perform their duties.
- Discuss the situation with your employee with a view to understanding the nature of their condition, and their limitations and prognosis.
- Consider whether there are any possible ways to facilitate the employee continuing to work with you.
- If the employee’s ill health amounts to a disability under the Equality Act, make reasonable adjustments to accommodate the employee. The required measures will depend on the situation, but might include providing the employee with assistive equipment or technology, modifying their duties, adjusting their working hours or patterns, or allowing them to work from home.
- Consider redeployment of the employee to an alternative role better suited to their abilities.
The key is that your process must be fair and lawful. You should also document each step, so that you can demonstrate the measures you took to support the employee in continuing their employment with you, and that dismissal was the last, unavoidable step.
Given the sensitive nature of dismissals on the grounds of capability due to ill health UK, the importance of working with experienced HR consultants like ours when navigating the process cannot be overstated. Ill-health dismissals are inherently risky, but you can significantly reduce the risks to your organisation by following the processes we map out for you, which will ensure your compliance with best practice and the law.
Call us now on 01491 598 600 or Click Here to Make An Enquiry and we will be delighted to help you.
