David Royden is a Partner with Laytons Solicitors and Head of Employment Law, Manchester, UK

Laytons Solicitors is a national law practice specialising in all aspects of Company and Commercial Law

Laytons Solicitors, 22 St John Street, Manchester M3 4EB.
Tel: +44 (0) 161 834 2100
Fax: +44 (0) 161 834 6862

Offices at London, Manchester and Guildford, UK


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Dismissal in connection with Illness

The inability of an employee to do a job, for whatever reason, is a valid reason for dismissal. However, the case of the employee who becomes physically or mentally unable to do his or her job because of illness, or is persistently absent from work because of illness, clearly demands special consideration. Tribunals recognise that - especially in the smaller firm - it will often not be possible for the organisation to 'carry' the ill employee, and they understand that a time comes when the employer can no longer be expected to keep open the post of an employee who is off sick.

As with the dismissals for other reasons, however, they expect the employer to have discussed the position with the employee concerned and to be absolutely sure of the facts about the employee's state of health and whether he or she is incapable of doing his or her job, or likely to be persistently absent in the future. This may involve taking medical advice about the employee's condition by talking, with the employee's permission, to his or her doctor. If there is less demanding work available which the sick employee would be capable of doing the tribunal will normally expect the employer to offer it to the employee. Employers should also note that the Disability Discrimination Act 1995 makes it unlawful for employers with 15 or more employees (note: the exemption for small employers was removed on 1 October 2004) to discriminate against current or prospective employees with disabilities.

Employers will wish to note that some people with illnesses would be covered by the definition of disability which is "a physical or mental impairment which has a substantial and long-term adverse effect on (a person's) ability to carry out normal day-to-day activities". Under the Act, an employer dismissing a disabled person, or giving them compulsory early retirement, for a reason relating to the disability, would need to be able to justify this with a substantial and relevant reason. An employer cannot justify such treatment if the reason could be removed or made less than substantial, by a reasonable adjustment. For some employers and employees, reasonable adjustments might include part-time working, some additional sick leave, redeployment to other duties, or the transfer of minor duties to another employee.

Dismissal in connection with Disciplinary and Grievance Hearings

Legislation provides that workers are entitled to be accompanied at certain disciplinary and grievance hearings by a fellow worker or a trade union official of their choice, provided they make a reasonable request to be accompanied. They also have the right to a reasonable postponement of the hearing, within specified limits, if a chosen companion is not available at the time proposed for the hearing by the employer.

Workers have the right to take time off during working hours in order to accompany fellow workers who are employed by the same employer. Workers will be unfairly dismissed (or selected for redundancy), regardless of age or length of service, if their employer dismisses them:

  • for exercising or seeking to exercise the right to be accompanied; or
  • for accompanying or seeking to accompany a worker.

It is also unlawful for an employer to subject a worker to any other detrimental treatment on these grounds.

The rights apply both to employees and to other workers such as agency workers and home workers, though not to those who are in business solely on their own account.

Dismissal without following Statutory Dismissal and Disciplinary Procedure

Where the statutory dismissal and disciplinary procedures apply and are not treated as having been complied with, it will be unfair to dismiss an employee without their having been followed, if failure to follow them is wholly or mainly the fault of the employer. Employees who wish to complain that they have been unfairly dismissed for this reason must have completed one year's continuous employment at their effective date of termination and must not have reached the normal retiring age for their employment, or, if there is no normal retiring age, the age of 65.

The statutory procedures do not have to be followed in certain circumstances, for instance in some collective redundancies, in industrial action dismissals and in constructive dismissals. There are also circumstances in which the procedures are treated as having been followed even though they have not been.

Dismissal in connection with Criminal Offences

Inside Employment

As explained before for a dismissal to be fair the employer must not only have a valid reason for the dismissal, but must also act reasonably. In a case in which the employee is suspected of a criminal offence, the test is whether the employer genuinely believed on reasonable grounds that the applicant was guilty of the offence in question and not, as in a criminal court, whether it is established beyond all reasonable doubt that the employee is guilty of the particular matter with which charged. Belief on reasonable grounds in this context will normally involve proper inquiries into the matter on the part of the employer. If the employer conducts such inquiries and gives the employee an opportunity to explain what has happened and then has reasonable grounds for coming to the conclusion that the employee can no longer be retained, the tribunal will usually find that the employer acted reasonably even if the employee is subsequently acquitted by a criminal court of the offence in question. On the other hand, if the employer dismisses the employee without making proper inquiries or giving the employee an opportunity to explain, the tribunal may well find that the employer acted unreasonably and that the dismissal was unfair.

Outside Employment

The question of criminal offences outside employment is dealt with by the Acas Code of Practice.

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