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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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