Avoiding unlawful discrimination when dismissing a worker

This section looks at three issues when dismissing a worker, making a worker redundant or telling someone they must retire:

• reasons and procedures
• making sure you are not discriminating unlawfully in dismissing a disabled person
• dismissing a disabled person because they can no longer do the job

Fair and unfair dismissal

This guide only tells you about equality law. There are other laws which you need to follow to make sure a dismissal is fair. Following the procedures to make sure a dismissal is fair will also help you avoid unlawful discrimination. 

When dismissing a worker, making a worker redundant or telling someone they must retire, you must avoid unlawful discrimination in the:

• reasons you have, and
• way that you do it.

Make sure that your reasons for dismissing someone do not amount to unlawful discrimination.

Make sure that the disciplinary procedures you follow are not unlawfully discriminating either.

There are extra steps you need to take before you dismiss someone who is a disabled person. This is because you must:

• consider whether you are discriminating directly or indirectly because of a person's disability
• not treat a disabled person unfavourably because of something connected to their disability where you cannot show that what you are doing is objectively justified (this only applies if you know or could reasonably have been expected to know that the person is a disabled person)

If a worker is a disabled person, you must also make reasonable adjustments if these are needed to remove barriers the person faces in doing their job. What this means is that you must first consider what adjustments would remove the barriers for the worker. If they are reasonable adjustments, you must make them. 

You must be particularly careful to avoid unlawful discrimination if the reason why you believe you need to dismiss someone who is a disabled person is because they can no longer do the job, for example, because they have been absent from work.

Although in this situation, the term ‘medical retirement’ may be used, or ‘retirement on ill-health grounds’, what this means in reality is that a person is leaving work because they are considered incapable of doing their job for a reason related to their health, and there are benefits for them in retiring, such as a pension.

If you and your worker genuinely agree that they should leave, then it is unlikely you will face a claim for unlawful discrimination.

If there is no agreement, for example, because your employee does not want to leave, or they see a prospect of returning to work, then you must make sure that you:

• consider if there are reasonable adjustments which would mean they could return to work and continue to work for you (even if not in exactly the same job)
• make sure you are not treating them unfavourably because of something connected to their disability, such as a need for regular breaks, if you cannot objectively justify your approach

What this means in practice

Before you consider making someone leave because of disability you should have thoroughly explored all other options to make reasonable adjustments to keep them at work.

This includes looking at any changes you could make to your working arrangements, or the physical features of your workplace, or whether you can provide additional equipment.

Reasonable adjustments to consider

Reasonable adjustments will vary according to the situation and the person’s particular needs. However, things to consider could include:

• a phased return to work if someone has been off for a long while
• part-time or flexible hours if someone is finding full-time working difficult
• changes to premises, such as installing a ramp, improving signs, or moving someone’s desk nearer essential office equipment
• provision of additional equipment, such as specific computer software or hardware if this is relevant to their job
• additional support (for example, a part-time reader for someone who has a visual impairment to help manage the volume of written information which they have to get through)
• reassigning some elements of their job to another member of staff or transferring them to another role in your organisation

Taking advice

In appropriate cases, as well as discussing it with the worker themselves, you may wish to consider seeking expert advice on the extent of someone’s capabilities and on what might be done to change premises or working arrangements. There are organisations that specialise in working with employers and their staff to help retain disabled workers through working out what adjustments could be made and whether they are reasonable.

However, you should be cautious about relying on medical advice alone to assess someone’s situation. A health professional may not be aware that employers have a duty to make reasonable adjustments, what these adjustments might be, or of the relevant working arrangements.

When it may be appropriate for someone to leave

If after consideration of the following factors, it is not possible for someone for someone to continue at work, then it may be appropriate for the person to leave:

• the impact of a person’s disability on the job
• any reasonable adjustments
• discussions with the person themselves and
• expert advice, where appropriate