What should you do if one of your employees is unable to carry out their normal day-to-day duties as a result of injury or illness, and how can you help them return to work? Sarah Gudgin explains the legal implications.
One of my employees has injured himself outside of the workplace. He has had quite a bit of time off work, but is keen to return to work. Unfortunately the injury does mean that he is not able to do his old job. I do not want to leave myself open to any unfair dismissal claims and I am unsure what I can do.
Much depends on the nature of the injury. If your employee has "a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities" he will be "disabled" for the purposes of the Disability Discrimination Act 1995 (DDA) and will benefit from the protection of this Act.
The DDA makes it unlawful for an employer to discriminate against an employee who is disabled.
There is a duty on employers to make "reasonable adjustments" so that disabled employees can continue working. Failure to make reasonable adjustments can be a form of discrimination.
The DDA defines a reasonable adjustment as a "reasonable step taken to prevent a disabled person suffering a substantial disadvantage compared with people who are not disabled".
Where an employer dismisses an employee for the potentially fair reason of incapacity and that incapacity is related to disability, there is a risk that the dismissal will be discriminatory. There are a number of duties an employer must fulfil before it can justify a dismissal in these circumstances.
You should speak to your employee and find out as much as possible about his injury and its effect on his ability to do his job. It is possible that there are elements of his role that he could do and his injury may heal over time. It may also be that your employee does not have a disability.
Explore with him whether there are any alternative ways he could do his job, whether some of his duties could be carried out by another employee or whether a part-time or another role would be suitable.
GPs now provide "fit" notes - rather than "sick" notes - to employees who are unable to work due to illness or injury. A fit note from your employee's GP may provide you with information on the impact of the injury and on your employee's ability to do his work.
You can also seek the advice of a medical expert by asking your employee to attend an appointment with a company doctor so that he can assess your employee's injury and his ability to carry out his role.
You should exhaust each of the above steps before considering whether you can justify dismissing your employee. While you may have a fair reason for dismissal if your employee is unable to carry out his work, the dismissal may be discriminatory if he is "disabled" and unfair if you do not carry out a fair procedure.
â- If your employee has a disability, consider possible temporary changes to his role which would facilitate his return to work and whether there are any other roles which may be suitable.
â- Seek expert medical advice as they may come up with options you have not yet considered.
â- Don't rush into a decision to dismiss.
Employees do not need any qualifying length of employment to benefit from the protection of discrimination laws. Compensation for discrimination claims is uncapped and covers both future losses and injury to feelings. There is no justification defence for an employer for a failure to make "reasonable adjustments" or for an employer who has directly discriminated against an employee.