These are just some of the questions that are likely to play on the mind of an employer when considering their next steps. Some employers may decide to proceed down a capability procedure, such as a “performance improvement plan”. As a result, it is perhaps unsurprising that claims of unfair dismissal arising out of allegations that a sick employee is no longer fit or able to perform his or her role frequently take up a great deal of time at the Employment Tribunal.
An alternative to proceeding down the route of a capability dismissal on the grounds of prolonged sickness may be to allow the worker to retire on the grounds of ill health. This route can be expensive. However, if a capability dismissal is mishandled it could be equally expensive for the employer, if not more so, particularly if the worker subsequently issues claims relating to disability discrimination (and potentially other claims as well) at the Employment Tribunal.
But what if the ill-health retirement process is mishandled by the employer?
This could also give rise to claims relating to disability discrimination and possibly other claims too.
However, it is worth bearing in mind a recent decision of the Court of Appeal in Dunn v The Secretary of State for Justice and Another, which made it clear that those deciding whether or not to grant ill-health retirement must be shown to have had discrimination on their minds when making their decision if the worker is to raise a successful claim of disability discrimination.
In this case, the worker was a prison officer who had applied for ill-health retirement in November 2014 on the basis of depressive illness and a serious heart condition. He was only granted ill-health retirement in late February 2016.
Both the Court of Appeal and the Employment Appeal Tribunal held that there was an unreasonable delay in the decision making process. Further, both the original Employment Tribunal and the Court of Appeal described the ill-health retirement processes being used by the employer as “arcane and unwieldy”. The Court of Appeal also endorsed the Employment Appeal Tribunal’s recommendation that the employer should review those processes.
However, crucially in this case, the Court of Appeal held that “it does not follow from the fact that [those processes]* are so deficient that they are also discriminatory”.
The Court placed significant emphasis on the fact that the key decision makers in the ill-health retirement process had not been asked when giving their evidence whether the unreasonable delay in making their decision had been in any way influenced by the worker’s disabilities.
Therefore, the worker’s claims of direct discrimination and discrimination arising from disability failed.
*Our emphasis added
Many workers reading this summary may consider the Court of Appeal’s decision in this case to be unfair.
However, it should be noted that, depending on the contents of an employer’s ill-health retirement processes, a worker may not necessarily have to be considered to be disabled to qualify for ill-health retirement.
The Court therefore had to ask whether the worker in this case had suffered unreasonable delay during the ill-health retirement process and, additionally, whether this delay was caused by the employer’s knowledge of his disabilities.
The Court held that the employer’s ill-health retirement processes would likely cause unreasonable delay to anyone who applied for ill-health retirement, regardless of whether they qualified as being disabled or not. This, coupled with the fact that key evidence that may have pointed towards disability discrimination had not been drawn out of the relevant decision makers, sadly sealed the fate of the worker’s claims.
Therefore, although it sounds obvious, in a claim of disability discrimination, it is always important to consider whether the acts or omissions of the employer and its representatives were actually motivated by the worker’s disability.
It may be of little comfort that the Court and the Employment Appeal Tribunal suggested that the employer update its ill-health retirement processes. However, it is a good reminder to employers that, where possible, their internal policies and procedures should be made as easy to follow and as streamlined as possible.
This article is not a substitute for legal advice on specific facts and circumstances. It is designed as a free update on the law at the time of publishing. Knight Polson Limited trading as QualitySolicitors Knight Polson accepts no responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.
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