It is common in workplace disputes that the trust which once existed between the parties ie employer and employee evaporates.
An employer makes the decision to terminate an employees employment while on sick leave, due to workplace absence or for failing to submit sickness certificates, for example. The employer does not believe the employees reason for absence given and dismisses the employee and thereafter a discriminatory dismissal legal action commences.
In the employers reasoning, they acted fairly, the employee was not telling the truth, but the employer may find themselves legally exposed.
In the employees view they were out on leave with workplace stress while on certified sick leave.
An employee then feels discriminated against and the employee potentially has the option of taking an unfair dismissal claim under the Unfair Dismissal Acts but elects to take a discriminatory dismissal action under the Equality Acts.
The rationale for this is that the employee was operating under a disability ie the illness at the time they where dismissed, and the employer did not afford them with what is termed reasonable accommodation as a consequence of having a disability.
In such a workplace dispute before a dismissal arises, it would be very beneficial for the employer to obtain legal advice before they act and dismiss the employee.
If an employee submits a sickness certificate citing the employee has workplace stress, and/or if the medical professional engaged by the employer also concludes same, it is imprudent for an employer to write to the employee indicating they do not believe or accept the absence is due to workplace stress and the absence reason is due to the employee seeking to avoid a workplace issue and then ending the employees employment with immediate effect.
If an employee were to take such a claim under the Equality Acts, and successful, the WRC can make an order of up to 2 years of the employees salary by way of compensation.
The Equality Acts prohibit discrimination, which occurs when one person is treated less favourably than another is due to the fact they have a disability. There are also other categories of discrimination which are prohibited, but this post is confined to discussing discrimination in connection with a disability.
If a person has a disability, the employer must take steps to allow an employee access to employment, participate in the employment unless there is a disproportionate burden on the employer. An employee with a disability must be afforded with reasonable accommodation in the workplace as a consequence of having the disability.
Before sending an employee a letter of dismissal in this scenario, an employer should give the employee a chance to be heard once the employee is notified dismissal is being considered, or risk not succeeding in their defence against a discriminatory dismissal claim.
Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute.
Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.
8(b) “In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement”.