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charles reynolds
Member - 1 post
I am sorry to say I feel this is a poorly written article it does not fully explian the judgement in the Malcolm case nor does it draw full comparisons from the Clark case. It gives insufficient guidance to employers on the matter.
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Claire Fuller
Member - 35 posts
Charles,
Apologies for any confusion - we have another article about this case on the website, which can be found at this address:
http://www.workplacelaw.net/news/display/id/15382
This article gives the following advice:
"This [case] is very important for employers because it is central to the disability discrimination test applied when an employee has their employment terminated after long-term ill health absence.
"If all employees with the same length of absence and future prognosis are dismissed, whether they have a disability or not, that is now not less favourable treatment under the Disability Discrimination Act (when it would have been before this decision). That means such decisions to terminate do not have to be considered by a Tribunal on the difficult test of "justification", they are simply not disability discrimination at all.
"This does not mean that [solicitors] are advising employers to dismiss all long-term ill health employees as:
* unfair dismissal law still applies, meaning their incapability to do the role must be fairly established;
* Tribunals are still very sympathetic to employees in these circumstances;
* this case is actually about the goods and services provisions (it related to someone with schizophrenia being evicted from a council house) and there may be an argument that the test for employment is different. On reading this decision we think that will not be the case but a cautious employer may want to wait for subsequent confirmation from Employment Tribunal/Appeal Tribunals; and
*employers are still under a duty to make reasonable adjustments under the Disability Discrimination Act, so prior to dismissal must exhaustively explore alternative ways of the individual returning to work including adjusting their role, providing training, and moving them to alternative vacancies.
"What this decision does do, however, is move the balance of any risk assessment regarding the dismissal of a long term sick employee significantly more in the employers’ favour."
Both articles have been put on the website as the case is thought to be so significant. We will also look to publish an article about what this will mean for employers in practice as soon as possible.
I hope this helps!
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