Yes, you are able to consider dismissing members of staff should their ill health mean they are no longer capable of doing the job they are contracted for. In some cases the employee will resign, but there are some instances where it is necessary that you may need to consider dismissing them on medical grounds.
However, medical capability dismissal should be considered as a last resort, and there is a formal process to follow before reaching to that decision. You, as a compliant employer, should in the first instance attempt to have a welfare meeting in order to gather as much information about the employee’s condition as possible, including how long the condition is likely to last for and when they consider they may fit enough to return to work.
Following that, you would be expected to: –
- With consent from the employee, obtain a medical report from the their GP, and/or organise an occupational health assessment to carried out on them
- Should it be likely that the employee is considered as having a disability recognised by the Equality Act 2010, you would also be required to make any reasonable adjustments in their position, namely to prevent any disadvantages from hindering their performance.
- If there are no reasonable adjustments available for them, and they are not likely to return to work anytime soon, the employee should be invited to a formal medical capability hearing to discuss all of the facts and information available to you.
What are Reasonable Adjustments?
If an employee is disadvantaged by something specifically because of their disability, and it is realistic/reasonable to make the changes within the workplace, then there will be an expectation for them to do so.
The definition of what is reasonable can vary, and will depend on: –
- The disability of the employee
- The resources available to the employer
- How practicable the changes would be
- If the adjustment overcomes the disadvantage created by the disability
- If the adjustment is more than necessary or what is needed to overcome the disadvantage
NB Not only are your own employees covered under reasonable adjustments, agency workers similarly have the right to ask for adjustments to be made, along with those who simply have applied for a role within your organisation.
There are three things the Equality Act 2010 states that you may have to do in order to remove any barriers employees may face as a result of their disability:
- Make physical changes to your office premises / employee workspace
- Change the employee’s workplace routine/role – for example offer them flexible working if possible
- Provide extra aids or support – for example offer them support for tasks or additional training
What if the problem persists?
If you are able to prove that either no further reasonable adjustments could be made or none can be made at all, then it may be fair for you to dismiss them, even if they are disabled.
During the dismissal procedure ensure you treat the employee with sensitivity and act fairly and reasonably.