S6 EqA 2010 - The Basis of Unfair Dismissal Law

Understanding how lack of protection under s.6 EqA 2010 may still lead to unfair dismissal

By:

William Slivinsky

10/09/25

Unfair dismissal does not only arise when an employee is legally “disabled” under section 6 of the Equality Act 2010. In fact, the absence of disability status is often what triggers problems. Employers, reassured by an occupational health opinion that disability is “unlikely,” too often jump straight into dismissal without pausing to consider whether the process is reasonable or fair.

At UDO, we see this mistake repeatedly. A simple OH report becomes the springboard for rushed capability procedures, overlooking the wider obligations under the Employment Rights Act 1996. This article explains why a lack of protection under the Equality Act does not strip away an employee’s rights, and how these situations can give rise to strong unfair dismissal claims.

ill employee stays at home and is worried she will be dismissed

What Section 6 EqA 2010 Really Means

Section 6 of the Equality Act 2010 sets out the legal definition of disability. To qualify, a worker must have:

a physical or mental impairment,
which has a substantial and long-term adverse effect,
on their ability to carry out normal day-to-day activities.

Occupational health assessors are rarely definitive on this. Instead, they tend to write that an employee is “likely” or “unlikely” to meet the definition. Employers then use this as a dividing line: if OH says “likely,” the Equality Act duty to make reasonable adjustments applies; if OH says “unlikely,” they often treat that as the end of the matter.

But this is a serious misunderstanding. The Equality Act is only one layer of protection. Even if an employee is not disabled under section 6, employers still owe duties under section 98(4) ERA 1996: to act fairly, to consider alternatives, and to balance decisions against the size and resources of the business.

📌 Practical tip: If your OH report says “unlikely disabled,” don’t assume that means you have no protection. Instead, focus on fairness arguments under ERA—raise feasible adjustments, redeployment options, or workload changes that show dismissal was not the only reasonable response.

Section 98(4) ERA 1996 – The Missing Step

Section 98(2)(a) ERA gives employers a potentially fair reason to dismiss for capability. But section 98(4) is where the real test lies: whether dismissal was reasonable in all the circumstances. This means considering the employer’s size, administrative resources, and the possibility of alternatives before deciding to end employment.

Too often, employers skip this step when they think the Equality Act no longer applies. They believe that once “reasonable adjustments” are off the table, nothing more is required. In reality, the duty to act fairly still binds them.

Imagine an employee who works in a cold warehouse environment and suffers frequent colds. If warmer roles exist elsewhere in the business and the employee identifies them during a capability hearing, dismissal without considering a transfer may fail the fairness test—even if the employee is not disabled.

📌 Practical tip: At your hearing, come prepared with a list of alternative roles or adjustments. If the employer refuses to consider them, it strengthens your unfair dismissal argument under section 98(4).

When Lack of Adjustments Becomes Unfair Dismissal

It’s true that the Equality Act 2010 only imposes a duty to make reasonable adjustments if the employee is disabled under section 6. But fairness under ERA goes further. An employer who ignores obvious, feasible alternatives simply because the Equality Act does not apply may still act unreasonably.

Take the example of cold-related illness. An employee working in chilled storage develops frequent colds and high absence levels. If the same business also runs warmer departments, and the employee identifies these as suitable alternatives during a capability hearing, it would be unfair for the employer to dismiss without even considering redeployment.

When a dismissal letter only refers to “meeting the requirements of the absence management policy” while disregarding the employee’s health context, it provides strong evidence that the employer has failed to satisfy section 98(4) ERA.

📌 Practical tip: Use the capability hearing to suggest specific alternatives. Record what you raise. If the employer later ignores this in their outcome letter, it will demonstrate to a tribunal that the process was unfair.

Letters and Policy Application

Procedural fairness matters just as much as substantive fairness. Capability dismissals often go wrong because employers mishandle the paperwork.

Invitation Letter – It must make clear that dismissal is a possible outcome. If this is omitted, the employee can argue inadequate notice.
Access to the Policy – The relevant capability or absence management policy should be provided. Withholding it creates transparency issues.
Consistency – Employers must apply policies consistently. Using comparators—how similar employees were treated—can reveal unfairness.
Dismissal Outcome Letter – This must give appropriate consideration to the employee’s health situation. A letter that relies only on “policy compliance” without weighing the individual circumstances may be evidence of unfair dismissal.

📌 Practical tip: Keep every letter, policy, and note from the process. If you spot inconsistencies—such as a missing right of appeal, or policies applied differently to colleagues—you have valuable grounds to challenge the dismissal.

Conclusion

Section 6 of the Equality Act 2010 sets a high threshold for disability. Many employees will not meet it, and occupational health advisers are often reluctant to say otherwise. But the absence of Equality Act protection does not mean the absence of rights.

Employers still owe duties under section 98(4) ERA 1996: to act fairly, to weigh alternatives, and to consider the broader context before deciding to dismiss. When employers treat a “not disabled” OH opinion as a green light for dismissal, they risk overlooking these duties—and exposing themselves to claims of unfair dismissal.

The lesson is clear: fairness goes beyond the Equality Act. It requires a full, balanced approach that considers the whole picture, not just a single opinion.

📋 Practical Checklist for Employees Facing Ill-Health Capability Procedures

Check your invitation letter – does it clearly warn that dismissal is a possible outcome? If not, raise this as a procedural flaw.
Request the policy – ask for a copy of the capability or absence management policy in writing. Keep evidence of the request.
Identify alternatives – prepare a list of feasible adjustments, redeployment options, or changes that could reduce absence.
Challenge over-reliance on OH – remind your employer that OH is advisory. Ask for reconsideration if new issues (e.g. allergies, workload) arise.
Document everything – keep letters, emails, and notes from hearings. They may become vital evidence.
Look for comparators – if colleagues with similar absences were treated differently, highlight this inconsistency.
Check the outcome letter – does it meaningfully consider your health context, or just recite policy provisions? If it’s the latter, you may have grounds for unfair dismissal.