November 8, 2014

Ill health dismissal justified

At the time of dismissal, the employee was on a final written warning for repeated sickness absence, around 90% of which were disability related. However the final period of absence which triggered the dismissal was not related to the disability. The employee had argued that the employer should have ignored the final written warning when deciding whether to dismiss for the last absence because this was not related to the disability. However the EAT said that the process of disregarding a warning was not the kind of step contemplated by section 20 (3) of the Equality Act and the Tribunal had given no reasonable basis for disregarding the warning. The EAT also held that there was no basis for arguing that the dismissal was unfair because the employer had not considered, at the time of dismissal, whether the earlier final written warning had been justified. There was no evidence that the warning was given in bad faith or was inappropriate.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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