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Employers cannot discriminate against you because you have a disability or because of something connected with that disability, for example, needing to take sickness absence. Not every illness is classified as a disability from a legal point of view. There are four key questions to determine that legal status:
1. Do you have a physical or mental impairment?
2. Does that impairment have an adverse effect on your ability to carry out normal day-to-day activities?
3. Is that effect substantial?
4. Is that effect long-term?
If you are unsure about whether the law can protect you against disability discrimination, the employment team at Vardags will be able to assist.
Your employment contract may contain a clause requiring you to attend a consultation with an occupational health adviser nominated by your employer. Employers request this so that they can better understand the nature of an employee’s medical condition and to explore whether they can make reasonable adjustments. If your contract does not contain this clause, you could request an occupational health examination and remind your employer of its duty to make reasonable adjustments for you at work if you have a disability.
Being dismissed after an extended leave of absence could still amount to a fair dismissal if your employer can argue that you are incapable of performing your role but this is very much dependent on the circumstances. If the correct processes in this situation are not followed, there could be a case for disability discrimination.
Your employer should have several meetings with you before proceeding to a dismissal taking steps to determine the medical position. For example, we would expect your employer to take into account: the prospect of you returning to work; the likelihood of the recurrence of the illness and the effect of absences on the rest of the workforce.
The employment team at Vardags can support you through a capability procedure at every stage.
If your employer knows about your disability, it has a duty to make reasonable adjustments to reduce or remove any disadvantage in the workplace. Examples may include adjusting premises for a wheelchair, producing manuals in braille format, providing additional IT software or altering your hours.
The obligation on employers to make reasonable adjustments is an important one which is often overlooked. We can explore with you whether your employer is failing to make reasonable adjustments and advise on steps to take to ensure that your rights are respected.
Not every adjustment will be reasonable. Much will depend on who your employer is and its resources but we can arm you with the correct knowledge to put you in a stronger position.
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If you need to speak to us immediately, our confidential enquiry line on 020 7404 9390 is staffed 24 hours a day, every day of the year.