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Dismissal on grounds of ill health?



It is now automatically unfair to dismiss an employee on the grounds of disability. Employers with more than twenty employees can therefore no longer automatically rely on ill health as a fair reason for dismissal.

You must first consider whether the employee has a disability and whether reasonable adjustments can be made to the job or the environment before considering dismissal. Likewise it will no longer be possible to use the frustration of contract route where an employee is incapable of any performance under the contract when they are temporarily unable to perform their duties as a result of a long-term medical condition.

In the case of Cox v The Post Office it was shown that to use a union agreed attendance procedure that used ‘trigger points’ to enable warnings to be given after a certain length of absence and eventual dismissal, was unfair.

In this case Cox received his first formal warning in 1993 because he had taken 23 days off over the year, 17 of which were caused by his asthma. He also received a formal warning in 1994 after taking more time off with flu. In the same year he took three days off for migraine and a further nine days for an asthma related infection.

He was formally interviewed about his absence record in November 1994 but was not dismissed. He then had another seven days of sickness over the next six months and was interviewed again in May 1995. In December 1995 he took 16 days’ sick leave for asthma and a four-day absence in January 1996 for an asthma related viral infection. He was then dismissed but this was overturned on appeal.

In August 1996 he attended work but collapsed. He was taken to hospital and diagnosed as having exhaustion. However it was unclear whether this condition was brought on by his asthma. One reason for his collapse was the exceptionally hot weather at the time and the poor ventilation in the office where he worked. He was finally dismissed in March 1997 for unsatisfactory attendance.

The tribunal established that asthma is a physical impairment that has an adverse effect on an employee’s ability to undertake his normal day to day activities so is therefore a disability. To apply an attendance procedure to disability related absences, was considered to be discriminatory and therefore unfair. They also stated that the employer should have discounted all of the disability-related absences before applying the attendance procedure.

To avoid breaching the Disability Discrimination Act you need to seek medical advice on the nature of the illness, its long-term prognosis and whether any adjustments could be made to the work environment to allow an early return to work. You must also consult with the employee to discuss their condition in the light of the medical evidence. In short, no decision to terminate an employee’s contract on the grounds of ill health should be made solely on the basis of absence.

Companies that subscribe to our employment law advisory service have unlimited access to us to discuss such issues. If you do not already subscribe, contact The AP Partnership. It will be much more cost effective than a large compensation award being made against you!

Alan Martin


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