Case Study: Helping An Employer Fairly Dismiss A Disabled Employee Who Was No Longer Capable Of Doing Their Job by Restructuring and providing Enhanced Redundancy Pay
How Fiona Martin, Head of Employment Law at our Brighton office, helped an Employer dismiss with dignity an employee with severe Multiple Sclerosis who was no longer capable of doing her job.
The situation
Jessica was working in an office-based role for Teacake Ltd, a small IT firm, for the past four years. She was diagnosed with an aggressive form of Multiple Sclerosis.
Joan, the Managing Partner, was concerned about the impact Jessica’s condition had on her ability to do the job. She was particularly concerned that Jessica was continuing to drive to the office in her company car, despite losing her cognitive abilities. She was evasive when asked if she had informed the Driver and Vehicle Licensing Agency of her condition. Jessica’s speech was also becoming slurred so that it was difficult to understand her.
Joan had great sympathy for Jessica’s condition and was keen to reach a solution that would work for both Jessica and met the needs of the business.
What Martin Searle Solicitors did
We advised that an ill health capability process needed to be started which involved asking Jessica for permission to obtain her medical records to send to a neurologist who would be paid to prepared a report on prognosis. To dismiss fairly on notice this would need to confirm Jessica would not be able to continue to work in any capacity ever again.
Initially Jessica was upset and did not want to share her neurology reports or medical records. She did however agree to work from home and if coming to the office to use a taxi which would be paid for by the Company, as a reasonable adjustment.
We advised Joan to make an Access to Work referral to see what other reasonable adjustments might be possible for Jessica to keep her in work for as long as possible.
Six months later Joan sought more advice as the company had failed an audit with two major non-compliances. This was directly as a result of Jessica’s failure to deal with previous recommendations particularly in relation to IT. This appeared to be linked to her disability.
By this time Jessica could not walk without using a stick, her speech had worsened, and she was no longer able to come into the office. Joan was very concerned about her wellbeing but Jessica insisted she could not face leaving work as it gave her structure.
The senior management team had decided that Jessica’s role as Operations Manager needed to be changed as the audit failure showed a lack of IT Infrastructure experience within the firm.
Consequently, we advised they go down a restructure so that rather than spending £3,000 on a medical report, enhanced redundancy pay could be offered, with a tax free payment of up to £30,000 plus notice and accrued holiday and bonus as taxable sums.
The work carried out by Jessica was to be divided up so it was carried out by two senior managers and one consultant with this IT experience.
We drafted the “at risk” of redundancy letter and provided guidance on consultation as well as providing a draft Settlement Agreement.
The result
Jessica accepted the Settlement Agreement. Her solicitor was keen that she could talk about this being a redundancy. This was never in question as we were clear this was not a sham but a true restructure. The confidentiality clause we added to the Agreement merely asked that the terms and existence of the Agreement be confidential and not the circumstances of her leaving.
This allowed Jessica to leave the business with dignity and with an enhanced redundancy payment rather than just the notice pay she would have received if she had been dismissed fairly due to ill health.
For expert advice about fairly dismissing someone with a disability, please contact our Employment Law Team on 01273 609911, or email info@ms-solicitors.co.uk for expert advice.
