Incapacity is a no fault dismissal and the employer must look at all other options before they can consider dismissal.
Incapacity for ill health or injury essentially asks whether the work you are tasked to do is “a bridge too far” given the nature and extent of your illness. Section 10 of Schedule 8 of the Labour Relations Act provides a useful guide to employer and employee alike on how to deal with this.
The first question is whether the condition is permanent or temporary. If it is temporary then the employer has a greater onus to retain you in the interim and the employer is compelled to look at the length of the time it will take for you to return to full capability.
The Act prescribes that, should an employee’s illness preclude them from doing their duties, the employer can consider dismissal. It must be noted that this consideration must be met with the greatest amount of circumspection because it is not as simple as saying,
they can’t do their job therefore they must go.
Where the employee is not able to perform their duties, the employer must look at:
1. The extent to which the employee can perform their duties – The employer bears the onus of looking at the duties of the employee and assessing what they are still capable of reasonably doing.
2. The extent to which the employee’s work circumstances and/or duties can be adapted to accommodate the employee’s illness – this can be as simple as considering whether the employee could perform their duties remotely from home or hospital, especially in the case of office workers. It is about finding a practical solution that enables the employee to continue rendering services to the company.
3. The availability of suitable alternative work – the onus on the employer is to look within the workplace and find a position that the employee could conceivably fulfil.
Are they allowed to retrench me when I have cancer?
Yes they can – BUT – they cannot use the cancer (or your health in general) as the reason. They can only use criteria that are fair and objective, such as Last-In First-Out or Skills Retention. If the employer feels that your health is impacting on your work performance they must conduct an Incapacity Investigation.
Can they fire me if they hired me knowing I had breast cancer beforehand and it transpires that I am unable to perform certain duties?
No. At least not using incapacity. In this instance the employer would have known about the illness beforehand and thus it would be hard for them to argue that they now cannot see you fulfilling your duties adequately.
Must I disclose my diagnosis to my employer or potential employers?
There is nothing in law that compels you to disclose existing medical conditions but, should your condition start to affect your ability to perform your duties, then the employer can consider dismissing you, as long as they follow the guidelines set out above.
A cancer diagnosis does not enable the employer simply to dismiss you. If your cancer and treatment begins to affect your ability to perform your duties then the employer is encouraged to weather the storm with you rather than kicking you to the curb.
Written by Charles Bailie