February/March 2019 (vol. 15/5)

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Expert Witness: Disability and misconduct

Advising employers when misconduct may have arisen from a disability


This is the CPD article for the February/March 2019 issue. If you are a subscriber, you can access the CPD by clicking here.

An employer is entitled to dismiss an employee for gross misconduct. But what happens if the employee’s misconduct arises from their disability? OH legal expert Diana Kloss explains the law

 An act or acts of gross misconduct may lead an employer to consider dismissing an employee and in many cases this will be justified. As a general rule employers are not expected to continue to employ someone whose actions have led to a loss of trust and confidence in them. But what if there is evidence that the employee has a mental or physical impairment that affected their behaviour? Should the employee take account of that as a mitigating factor? Do the laws of unfair dismissal and disability discrimination limit the employer’s powers in this regard? This article will examine recent case law in this area and, in particular, the effect that it may have on occupational health (OH) practice..


Diana Kloss is a barrister, former part-time employment judge, Acas arbitrator and author

Author: Kloss D


Occupational Health at Work February/March 2019 (vol. 15/5) pp39-41

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