We have an employee whose sickness absence is poor and we are considering disciplinary action under our Attendance Policy.  The employee is disabled.  What can we do? 

In considering disciplinary action against a disabled employee, you should be aware that you may face allegations of discrimination in that you have treated this employee less favourably because of their disability.  There might also be a suggestion that your treatment amounts to indirect discrimination, disability related discrimination or your failure to make reasonable adjustments.

In relation to allegations of direct discrimination, the individual could suggest that you have treated them less favourably than you would treat another employee not having that particular disability.  It is important that you are aware there is no defence to direct disability discrimination.

Alternatively, and more likely, is the risk that if you discipline the individual you face allegations of disability related discrimination or failure to make reasonable adjustments.  In relation to the former if you decide to discipline this employee under the terms of your Attendance Policy, the employee might suggest that they have been disciplined for an  absence which is clearly related to their disability and this amounts to less favourable treatment on the grounds of disability.  To be successful in such an allegation, the disabled employee would have to point to another colleague who had been off sick for the same length of time for a non-disability reason, or hypothetical person in similar circumstances, to suggest that he/she had been treated less favourably than that person.

You might be able to justify your treatment of the employee in these particular circumstances but to do so you would have to be able to show that your treatment of the disabled employee, namely the disciplinary action, was particular to the employee’s own circumstances and that you had a real and substantial reason for imposing the disciplinary sanction.  Even if you believe you can meet allegations of disability related discrimination, you must also be aware of your duty to consider reasonable adjustments.  What is reasonable in your particular circumstances will depend on factors such as the organisation itself, its resources, number of staff, additional financial assistance and whether any particular adjustment will lessen the disadvantage to this disabled employee.

Your duty to make reasonable adjustments is triggered only where you are aware, or could reasonably have been aware, that the employee was disabled but it appears you already know that this employee’s condition is such that it amounts to a disability. Therefore you should assume that your statutory duty is triggered and consider reasonable adjustments for this disabled employee.

Reasonable adjustments include not only amendment to premises, facilities etc., transferring some of the disabled employee’s duties to another but also could involve modifying your disciplinary procedures.

You ought to consider therefore whether amending the application of your Attendance Policy to the disabled employee would work to limit the substantial disadvantage which may be experienced by this disabled employee.  Often, an employer will ignore disability related absence for other purposes e.g. redundancy criteria, appraisal reviews etc.  Consequently, if you are proposing to actively consider this disability related absence, it is essential that you are aware of the risks in using that absence as the basis for disciplinary action.

Whilst the Company would be entitled to consider the effect on the remaining work force of an adjustment to this Policy for disabled employees, this would not absolve the Company from its obligation to consider a reasonable adjustment in the implementation of the Policy for disabled employees.   It might be the Company could suggest that the implementation of the Policy which benefits the work force as a whole, is a proportionate means of achieving its aim to encourage or facilitate sick employees’ return to employment.

Should you decide to implement the Policy against disabled employees, or consider a relaxation in its implementation, it is recommended that you do not allow implementation or any amendment as a blanket approach for other disabled employees, but tailor the application of the Policy to the individual circumstances of each disabled employee.