An employee wants to return to work after a long absence, but the employer is considering dismissal on the grounds of capability. Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise on whether the employer can go down this route.

The question:

We have an employee who has been off sick for coming up to six months and her SSP is due to expire. She now wants to (attempt) a return to work, however the role involves heavy computer use and the condition relates to her eyes so, as employers, we are worried that excessive computer use could result in further damage.

Her eyesight is about 20% in one eye and 50% in the other so we are also worried about the implications of making mistakes when dealing with customer systems (options for computer aids for the visually impaired are limited as the role involves working remotely on customers systems).

In one month’s time she will also require further surgery on the other eye which could result in another lengthy absence. We are only a small company and are having difficulty keeping her role open and a temp is not an option as it takes six to 12 months to train.

Although we did not want to go down this route as she is a valued employee, are we in a position to look at dismissal due to capability? Her doctor has said she could attempt a return to work with special glasses, however can we demand to ask for this in writing so we cannot be held liable?

Legal advice:

Esther Smith, partner, Thomas Eggar

Yes, you could be considering a possible termination on the grounds of capability. However, before you consider this you should certainly be getting an up-to-date assessment on her health, her prognosis for a return, and details of any adjustments that could be made to assist her. This information can either come from her treating consultant or an independent doctor engaged by the company.

Until you get that information it is difficult to advise further. If the doctor confirms that she is able to return to work with special glasses, as she is suggesting, then this is likely to be a reasonable adjustment and a dismissal at this stage would be both unreasonable and risky.

However, if the information she is providing is not quite accurate (which sometimes is the case where employees come towards the end of their sick pay and are keen to return for financial reasons contrary to the advice of their doctors) then you need to take account of the report provided and decide whether any adjustments suggested in there are reasonable.

As I say, until you get a report it is difficult to provide further advice, but it is important that the employee is advised of the reason you want the report and is aware from the outset that you are considering their ongoing employment otherwise the procedural side of the dismissal should be flawed.

When dealing with any ill health / capability dismissal, particular one that is likely to include aspects of the disability discrimination act as this one is, you should always take specific advice relevant to your situation, as the risks of getting things wrong are pretty high.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.

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Martin Brewer, partner and employment law specialist, Mills & Reeve

It’s possible that this employee could satisfy the definition of disabled under the Disability Discrimination Act. Whilst it is perfectly possible to dismiss a disabled employee, you must first consider whether she can do all or a part of her job either with or without ‘reasonable adjustments’ (this means adjustments which it is reasonable for you to make to the work, or any physical features of the workplace which will mitigate the effects of the disability and enable the employee to work).

In this case you don’t suggest that the employee can’t work, she may be able to work using ‘special’ glasses. If these cost money, one adjustment might, for example, mean you pay for them. I agree that you need her doctor to sign her fit to work and you may want to carry out a risk assessment for her. You may want to offer her the chance to work to see how it goes.

Your second concern relates to the further surgery and ‘lengthy absence’. Many smaller employers cannot effectively cover some absenteeism so if this is the case then you may dismiss but that dismissal would not be for ‘capacity’.

At the moment this employee may be able to work. Such a dismissal would be because of planned absence and would therefore be for ‘some other substantial reason’ and you will have to work hard to convince a tribunal that this required dismissal (not impossible, just difficult).

In the end, if this employee’s physical shortcomings and prospective lengthy absence do cause your business significant difficulty you will be able to dismiss fairly, but a careful process will need to be followed, and as a minimum, will include medical advice and a powerful business reason for the dismissal.

Martin Brewer can be contacted at martin.brewer@mills-reeve.com. For further information, please visit Mills & Reeve.

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