Avoiding pitfalls when dismissing for poor performance on sick leave

An employee was dismissed following her return to work from treatment for breast cancer. Cancer is deemed to be a disability within the Equality Act 2010.

The employee was underperforming in her job but was never informed of her poor performance because her employer did not want to “add to her stress”. There was no communication between her and her employer or documentary evidence regarding her poor performance. She was also within her probationary period but no performance reviews had taken place. She was dismissed whilst on certificated ill-health absence. The employee had undeniably made some mistakes in her work. The judge concluded that these mistakes were not so serious as to justify terminating her employment. By failing to train or engage with the employee the company did not allow the employee to address her performance and improve it. Dismissing without taking into account her disability where the link between disability and performance and making adjustments to allow for it, was a hugely risky strategy. No doubt the employer wanted to avoid confrontation or to cause this employee unnecessary distress. Sadly, the consequence of this was that the company failed to make adjustments and dismissed with incomplete data and a lack of understanding. The employee was awarded £30,000 in a disability discrimination claim.

An employer is responsible for training their employees. A probationary period can be used as an effective tool to address any performance-related issues. In relation to any disability or ill-health of the employee, it is a requirement for employer to put in place reasonable adjustments. This must be done before going down any performance management route. It is paramount to communicate with the employee any poor performance.

Navigating poor performance can be very tricky, especially when managing long term sickness for employees who suffer with disabilities. As to avoid falling foul of employment law, we would always advise that employers carry out a full capability process. If you have concerns about an employee’s capacity to participate in the process, you can discuss whether you can engage in this process and provide them with reasonable adjustments such as engaging in writing and not in person, permitting a family member to attend any meetings with them for support or considering a referral to occupational health for formal guidance on how best to conduct this process.

In this case, the employer was discriminatory in their failure to carry out a fair process. Whilst this appears to have been done in an attempt to avoid exacerbating the employees’ condition or increasing her stress, they have in turn failed fulfil their obligations under the Equality Act 2010.

AI – The White Paper

A lot is being said about the impact of artificial intelligence (“AI”) recently. AI in the workplace is a particularly contentious topic. The Department for Science, Innovation and Technology has published a White Paper proposing guidance on the use of AI in the UK. The White Paper proposes that the EHRC and the ICO will work with the EASI and other regulators and organisations in the employment sector to issue joint guidance. This guidance is likely to focus in particular on the principle of fairness, given the existing risk that some AI programmes may show unfair bias in favour of certain characteristics, and/or may discriminate unfavourably and potentially unlawfully. For example, if an employee or prospective employee believes that they have been discriminated against by an employer’s use of AI software, then that might give rise to a claim under the Equality Act 2010. Concerns about employers justifying fairness in the context of AI redundancy selection decisions should also be considered. The White Paper is currently within a consultation period until 12 June 2023. The government will then issue initial guidance within the next 6 months for implementation. 

The information contained in the above article was correct at the time of publication. To ensure you are kept up to date with changes to employment law matters, click here to sign up to our dedicated employment database.

Learn more about Rebecca

All the articles above are written by our Partner & Head of Employment Rebecca Dennis. Rebecca’s professional background is unique in that she worked for more than 20 years as a barrister providing legal advice, drafting and advocacy for her clients and more recently provided specialist trouble-shooting services on employment law and employee relations at a leading international HR outsourcing company.

What Rebecca doesn’t know about Employment Law really isn’t worth knowing.

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