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Anne Blowers
Member - 5 posts
An employee who has a medical problem which is undergoing investigation, behaves in such a way as to be suspended, and subsequently dismissed for gross misconduct according to the terms and conditions of his contract. He is taking us to a Tribunal for discrimination because of his possible future disability due to a recovery period of three months plus IF he has to have an operation.
Can you please define disability in this context.
We feel that the case is malicious rather than serious as his references have also proved false.
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Helen Abbott
Member - 31 posts
Dear Anne,
As an HR practitioner, I would treat the two issues separately, assuming that the gross misconduct was not linked to the medical condition.
From the information that you provide, I am uncertain what steps you took on discovering that your former employer had a medical problem. However, if you made any adjustments to his job or referred him to an Occupational Health advisor, wrote to his GP etc. it would be worthwhile ensuring this is documented. Again, if you had any discussions with him about his condition it is helpful to document it together with dates. If the situation is heard at an Employment Tribunal, a paper trail could be helpful.
With regard to the Disability Discrimination Act, for a medical condition to be considered a disability it needs to meet certain criteria. This includes the requirement for the condition to be long term (in excess of 12 months), a physical, sensory or mental impairment, it will cause substantial adverse effects and affect the ability to carry out normal day to day activities.
It could be that the case is malicious but without knowing more about the circumstances and medical condition, it is difficult to advise further.
With regard to Tribunal claims, time is of the essence when responding and therefore it is imperative that you forward the copy of the IT1 and IT3 forms to your HR Department or relevant person to action.
If you would like to read more about the Disability Discrimination Act, the DTI website offers further guidance www.dti.org
For further guidance, the Disability Rights commission can provide more detailed guidance. Their helpline is 0845 7622 633 or textphone 0845 7622 644. The website is www.drc-gb.org.
Particularly useful leaflets are:
DL170 Disability Discrimination Act 1995: What Employers need to know
DLE 7 Employing Disabled People: A good practice guide for managers and employers
DLE 9 Disability Discrimination Act 1995: An Introduction for small and medium sized businesses - Rights of Access to goods, facilities, services and premises
I hope this is helpful.
Best regards,
Helen Abbott MCIPD
HR Consultant
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Anne Blowers
Member - 5 posts
Thank you for the info. We have a Solicitor to act for us, as we are so new to this. He thinks that the case may be dropped last minute.
We will acquire the publications you suggest, they will be helpful in the long term.
The employee in question only worked for us for 4 months, so was not entitled to a written reason for dismissal. We did take legal advice, but the Disability claim is the only discrimination that seems to provide a loophole.
Regards
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