Dismissing disabled employee situations require careful handling by UK employers. I’m John Bloor from EBS Law, and in this article I explain the legal framework, the risks, and the practical steps you should take to ensure a dismissal is fair, lawful, and proportionate.
The legal framework around disability and dismissal
Employees who meet the Equality Act 2010 definition of disability have additional legal protection. A disability is a physical or mental impairment with a substantial and long-term effect on normal day-to-day activities. This means that even short-service employees may bring claims if the reason for dismissal is connected to their disability and you have not made reasonable adjustments. The risk of discrimination claims applies from day one of employment, unlike ordinary unfair dismissal claims that usually require two years of service.
When dismissing disabled employee may be lawful
Dismissal can be lawful if it is for a genuine and fair reason unrelated to the disability, or if the employer has taken reasonable steps to accommodate the disability but performance or capability remains unsatisfactory. For example, dismissal may be fair where:
- Reasonable adjustments have been made but attendance remains unacceptably poor
- The employee is incapable of performing essential functions of the role despite adjustments
- There is misconduct unrelated to the disability
Even in these circumstances, you must follow a fair process and document your decision carefully.
Risks of dismissing disabled employee unfairly
Where dismissal relates to disability and you have not considered adjustments, the employee may claim discrimination, automatically unfair dismissal, or failure to make reasonable adjustments. Compensation in such cases is uncapped. Employers may also suffer reputational damage, employee relations issues, and wasted management time defending tribunal claims. This is why dismissing disabled employee cases must be approached with diligence.
If you would like free advice, John Bloor and the team are here to help. Call John today on 01625 875587 or email enquiries@ebslaw.co.uk for tailored support.
Reasonable adjustments you must consider
Before making any dismissal decision, consider whether adjustments could help the employee perform their role. Reasonable adjustments might include:
- Flexible hours or remote working
- Modified duties or workload reduction
- Assistive technology or equipment
- Time off for medical treatment
Failure to explore these adjustments is one of the most common reasons tribunals find against employers. You can review government guidance on reasonable adjustments here: gov.uk: reasonable adjustments.
Medical evidence and occupational health
In capability-based dismissals, seek medical evidence or an occupational health report. This provides an informed view on the employee’s condition, prognosis, and what adjustments could help. Documenting this step shows the dismissal decision was informed, not rushed.
Consultation and engagement
Consult with the employee, ask for their views on adjustments, and discuss any proposals. Keeping communication open demonstrates reasonableness and reduces the likelihood of disputes. A sudden decision without consultation is more likely to be challenged.
Process to follow when dismissing disabled employee
A fair process is critical. In most cases, this means:
- Investigating performance or capability concerns thoroughly
- Consulting with the employee and considering their input
- Exploring reasonable adjustments and documenting why options were accepted or rejected
- Seeking medical advice where relevant
- Allowing representation in formal meetings
- Confirming the decision in writing and offering a right of appeal
Handled correctly, dismissing disabled employee may still be necessary, but the process demonstrates fairness and helps defend against claims.
Capability vs conduct issues
If the issue is performance linked to the disability, focus on capability and adjustments. If the issue is misconduct unrelated to disability, follow your disciplinary process. Be clear about the distinction, as mislabelling the issue could increase legal risk.
Settlement discussions
Sometimes the best outcome for both parties is an agreed exit. A protected conversation or settlement agreement can achieve this, provided it is handled sensitively and legally. This avoids protracted disputes while ensuring the employee receives compensation and closure.
Checklist before taking action
- Have you confirmed the employee’s condition meets the Equality Act definition of disability?
- Have you obtained occupational health or medical evidence where needed?
- Have you considered and documented all reasonable adjustments?
- Have you consulted the employee and listened to their input?
- Is dismissal truly the last resort?
Communicating the decision
If dismissal is the only viable outcome, communicate it respectfully and clearly. Explain the reasons, set out any steps you took, and confirm the right of appeal. Avoid vague phrases such as “not a good fit”; instead, state the factual basis of capability or conduct concerns.
Contact John Bloor today for expert support at EBS Law. We’re here to ensure your business stays protected every step of the way. Call 01625 875587 or email enquiries@ebslaw.co.uk.
You may also find these EBS Law resources helpful:
- Disciplining Autistic Employee Guide for Employers
- Long-Term Sickness Employment Rights
- Probationary Period Dismissal UK for Employers
Disclaimer: This article provides general guidance only and does not constitute legal advice. For advice on your specific circumstances, please contact us directly.