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Employee Dismissal: Ask the Expert

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Carley Dhand, Employment Specialist at Linder Myers Solicitors advises:-

 “I have an employee who is on probation and is suffering from an abscess. They have been underperforming for some time and I would like to dismiss them. Is there anything I need to consider?”

Whilst this employee has less than 2 years’ service, dismissing an employee must be handled with care as there are certain claims which an employee can bring without having any specific length of service. For example, disability discrimination.

The first step is to ascertain whether the employee’s abscess amounts to a disability under the Equality Act 2010, which is defined as follows:-

A person is disabled if they have a physical or mental impairment which has a substantially adverse and long-term effect on their ability to carry out normal day-to-day activities.”

Before instigating any formal disciplinary action, I would recommend that you invite the employee to a welfare meeting to discuss their condition in more detail. In particular, you will need to make enquiries as to whether his or her abscess is substantial (i.e. more than minor or trivial) and long-term (i.e. has it lasted or is it likely to last more than 12 months). Further, it is also important to determine whether the abscess has affected their ability to carry out their normal day-to-day activities. This is not restricted to activities within the workplace and so includes cooking, cleaning and walking.

If the answer to all of these questions is yes, it is likely that they are disabled and will qualify for protection under the Equality Act 2010. Consideration will need to be given as to any appropriate reasonable adjustments.  If the employee is unable to answer these questions in part or at all, it might be worthwhile obtaining a medical report.

I would recommend you seek legal advice before you dismiss any employee to ensure that   the risk of any employment claim being bought against your practice is reduced.

Should you require any further information or a letter template confirming the dismissal, please do not hesitate to contact us on 0161 837 6844 or via email [email protected]

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