A BOLTON solicitor is warning local companies to consider the Disability Discrimination Act and its Code of Practice before sacking under-performing employees.

It follows the case in which process worker Malcolm Kenrick, who had worked for Heinz for 16 years, successfully sued the company for disability discrimination.

He became ill in 1995 and was sacked a year later -- still awaiting diagnosis -- at a time when the company's own independent doctor agreed he was unfit for work because of illness.

He was later diagnosed as suffering from Chronic Fatigue Syndrome, also known as ME.

Mr Kenrick, with the help of specialist employment lawyers from Bolton-based Keogh Ritson, took Heinz to an employment tribunal for both unfair dismissal and disability discrimination.

He won on both counts, but the charge of unfair dismissal was set aside on appeal.

The Employment Appeals Tribunal upheld the second judgement.

Mr Alan Lewis, head of employment law at Keogh Ritson, said: "What this judgement established is that, if an employee is performing badly, the employer must consider whether this could be caused by a disability.

"For example, if a typist is constantly misspelling words, even though she herself may not know she is suffering from dyslexia, the employer must consider that this could be the case.

"If she is dismissed without any consideration of this possible disability, then the employer could be open to a charge ofdiscrimination."

Mr Justice Lindsay, president of the Employment Appeals Tribunal, said: "We do not think this will open the floodgates, but it does require employers to consider whether the reason for dismissal might relate to disability and to reflect on the Act and the Code of Practice."

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