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Esther Smith

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Ask the Expert: How can I legally sack an employee with a disability?

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The question

We have a member of staff who is bi-polar (declared and fully supported since November 2009). Recently, however, there have been changes to his mood and behaviour. He suffers from depression, feelings of self-harm, hallucinations.
 
On occasion, the staff member has also sent inappropriate and racist emails to some colleagues and demonstrated violent behaviour towards others. At other times, he has compromised the safety and security of staff/clients by leaving the centre unattended or visiting it out-of-office hours, leaving the lights on and not locking security doors.
 
We have currently suspended him on medical grounds (on full pay) pending reports from his psychiatrist and GP. A large portion of his job is working with live electrics.
 
The company has considered a range of alternative options but, unfortunately, none were truly suitable. But we have real concerns about how to continue to support this staff member given his condition, particularly as some of his behaviour and actions have escalated in seriousness in recent months.
 
The company would like to dismiss him, but I cannot see a fair way to do so without infringing equalities legislation. Financial constraints make it difficult to agree to terminate his contract of employment with a substantial payment and compromise agreement. Please let me know what other options are available?
 
 
Legal verdict
 
Martin Brewer, a partner at Mills & Reeve
 
I am not sure why you are so worried about this. Your obligation is to consider and make reasonable adjustments for a disabled worker in order, as far as possible, to keep them in work.
 
It is obvious that you, as an employer, cannot make adjustments to prevent the worker from behaving in the way that he does. The behaviour is a symptom of the underlying illness.
 
So the issue for you is, should you, in effect, adjust your expectations about an employee’s behaviour in order to take account of their disability. To take your example, normally if a worker sends a racist email to another, that worker would probably be dismissed (there would have to be a very good reason for there not to be a dismissal).
 
So the question for you here is whether it is a reasonable adjustment in your workplace to ‘forgive’ this and other normally unacceptable behaviours. If so, then that will be the end of the matter.
 
If not, then you need to discuss this with the employee, explain the impact of his behaviour on others and that he needs to sort out his medication in order to deal with the situation, otherwise he faces dismissal in the end.
 
Such a dismissal would be for something arising out of a disability, but such discrimination can be justified if what you have done (the dismissal) is a proportionate means of achieving a legitimate objective. In this case, the objective is harmony in the workplace, avoidance of race claims etc.
 
Having considered reasonable adjustments, if dismissal is essentially the only option, then you may well be able to justify your actions.
 
The health and safety rationale is even more clear-cut. If there is no alternative work for him to do and the employee is genuinely putting himself and others at risk, it is pretty difficult to see what adjustments you can make, short of dismissal.
 
So check out the medication position (is this being altered to get the employee back on an even keel?), gather evidence about how other staff feel about his behaviour, investigate pertinent health and safety issues, consider any other adjustments and, if in the end the decision is to dismiss, you should be able to justify it.
 
Martin Brewer is a partner at Mills & Reeve.
 
 
Esther Smith, a partner at Thomas Eggar
 
There appear to be two potentially fair reasons for dismissal in this instance. One would be misconduct based on the racist comments, violent behaviour and various omissions outlined above. The second would be capability – if the employee is rendered incapable of performing his contractual duties in a reasonable and appropriate manner or, given his work with live electrics, in a safe manner, due to ill health. 
 
Both of these routes may be fair in law, if handled correctly. But, as you anticipated, they do need to be considered in light of the Equality Act 2010 (‘the Act’) as bi-polar disorder is almost certainly going to be protected as a disability under it. 
 
It is an offence under the Act to treat an employee unfavourably because of something arising out of their disability unless this treatment can be objectively justified. As the behaviour described above is indicative of bi-polar disorder, any dismissal will need to be a proportionate means of achieving a legitimate aim to avoid falling foul of the Act.
 
The first limb of this test should be easily satisfied if you are genuinely and objectively concerned with the health and safety of your staff (including the employee in question) and you have a legitimate business aim in wishing to ensure that the premises and your employees are kept safe and secure.  
 
With regards to proportionality, the question is, essentially, could less discriminatory measures have been used to achieve the same aim?
 
It seems that you may have exhausted this avenue already, but it is important, prior to any dismissal, to fully consider any possible adjustments to the working environment. It will be difficult to establish that your actions are justified if reasonable adjustments could have been made to improve the situation but weren’t. 
 
Particularly on the basis of these facts, if the employee has been working for you since November 2009 (or before) and their behaviour has only recently changed, you should look to see whether any change at work may have caused this and remove it where possible.
 
Ascertaining a true picture of the employee’s medical position is also vital and so you must wait for the medical reports to come back before deciding whether or not to continue with your plans for dismissal. 
 
Unfortunately, without sufficient funds, there are not really many alternatives for dealing with the situation open to you. Although an employee may be willing to enter into a compromise agreement based on a modest sum, do you really want to suggest this and highlight a potential breach if the sum is unlikely to be accepted? 
 
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
 
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