Keep letters detailed and formal, Tribunal ruled!

A factory packer who suffered multiple seizures at work was unfairly dismissed and was a victim of disability discrimination, a tribunal has ruled. The employee did not speak English and his dismissal was “procedurally unfair” because the employer did not provide him with a written invitation “spelling out” what the consequences could be for him, following an occupational health report which concluded that he was “unfit for work” as a result of his epilepsy.

The tribunal stated that the employee was given an occupational health assessment but that it did not detail what the findings were or provide evidence of any action the employer took as a result.  However, following the employee’s last seizure at work he did not return to work and a further occupational health report concluded that he “needed to work in an environment that is safe should he have a seizure while at work”. There was a dispute between the employer and employee as to whether he was given any warning that the report could bring his employment to an end, and the tribunal found that he was not given “formal” written warning, and this amounted to his unfair dismissal.

The lack of written invitation “spelling out” what the consequences could be to the employee meant that “potential errors” in both the occupational health and GP reports on the frequency of his seizures were unable to be corrected.  The Employment Judge said the lack of “formal” invitation for the employee to discuss the findings of the reports led to there being “no opportunity for the conflict over the contents to be addressed, following the necessary warning about what was being considered and the documents having been received, so that the employee was properly aware of the potential outcomes and what they might entail”.

This case highlighted just how important it is that a fair process is followed by employers before dismissing an employee, pointing out the risks. Employers should also make notes of meetings and share them with the employee. Finally, to meet the proportionate element of the defence, employers must not dismiss without first considering whether there are alternative and less unfavourable means of achieving the legitimate aim, and it is of course prudent to keep written records of those considerations.

Should you have tricky situations in the workplace 121 HR Solutions are well placed to provide step by step guidance on how to manage them. Contact us on 0800 9995 121 to discuss our services to support your business.