Capability – Justifying the Dismissal of a Disabled Employee is Never Easy

Justifying the dismissal of a disabled employee on capability grounds is always likely to be an uphill struggle. That was certainly so in the case of an HGV driver who was sacked whilst in the midst of a long and painful recovery from major back surgery.

The operation was serious enough to require the driver’s post-surgical treatment in a high dependency unit for three days. For months afterwards he required his wife’s help in climbing stairs and many of the most basic activities of daily life. Although his recovery was initially promising, he continued to suffer debilitating pain and was issued with a blue badge, entitling him to preferential parking.

He was on sick leave when he was dismissed following a capability review. His employer had previously formed the opinion that he was not disabled. His response was to launch Employment Tribunal (ET) proceedings, claiming disability discrimination contrary to Section 15 of the Equality Act 2010.

Upholding his claim, the ET found that his condition met the statutory definition of a disability in that it was a physical impairment that had a substantial and long-term effect on his ability to carry out normal day-to-day activities. The impairment was likely to last at least 12 months. From what he had told his employer, the latter ought reasonably to have known that he was suffering from a disability.

The employer did not dispute that his dismissal amounted to unfavourable treatment but nevertheless argued that it was justified and proportionate. His continued absence on sick leave had given rise to expense, disruption and uncertainty and the employer had been required to pay another driver to cover his work.

Rejecting those arguments, however, the ET noted that the employer was at the time enjoying increased profits of about £10.4 million a year. None of the costs to which it had allegedly been put due to the driver’s absence were supported by documentary evidence. Given that he was not receiving sick pay when dismissed, there would have been no cost to the employer in retaining him until further medical and occupational health evidence was obtained. If not agreed, the amount of his compensation would be assessed at a further hearing.