Disability discrimination at work
- Matt Gingell
- Updated: Wed, 11th Jan 2017
We advised an employee on a disability discrimination at work claim. She was injured at work and later dismissed on capability grounds.
Our client sustained injuries at work. As a result of these injuries she was absent from work for 3 years. She could not return to work in her current role. Her employer undertook a redeployment process which was unsuccessful. Following a capability meeting, our client was dismissed.
Disability discrimination at work: reasonable adjustments
It was apparent that our client was not fit to return to work in her current role. We relied on her expert medical evidence in relation to her personal injury claim. However, we had to establish whether our client was “disabled” for the purposes of the relevant discrimination legislation. Our client satisfied these requirements:
- A person is disabled for these purposes if she has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
To avoid claims of disability discrimination at work, employers are required to make reasonable adjustments. An employer may discriminate against a disabled employee by failing, without justification, to make reasonable adjustments to help overcome the disadvantages resulting from the disability. The most reasonable adjustment was redeployment, i.e. for our client to be transferred to another job role to fill an existing vacancy.
A redeployment process of eight weeks had taken place. During this period our client received job lists with job descriptions by post. She was invited to apply for any for which she felt were suitable. This process was unsuccessful. It formed part of her employer’s decision to dismiss her. However, the company’s own management procedure provided that a different redeployment process had to take place if the absent employee was disabled.
At the appeal hearing regarding our client’s dismissal, we successfully argued that her employer had not followed the correct redeployment procedure given that our client was disabled.
Our client was therefore reinstated. She received back-dated salary from when her notice period ended. Due to her disability, she could not return to work in her current role and a new redeployment process took place. Our client was redeployed to a suitable department with reasonable adjustments made.
The new role was a lower-level position in comparison to our client’s previous role. However, we negotiated a one year salary freeze which allowed her to receive her former salary for the first year in her new role.