Dealing with disability and ill health

A difficult balancing act for employers can be managing absence levels of disabled employees. It is often the case that disabled employees are absent from work more often than non disabled employees. Employers are expected to deal with this and the employer is likely (quite correctly) to take a cautious approach.

The employer will be expected to adapt procedures and working practices to make 'reasonable adjustments' for the employee in question. However, a disabled employee could be dismissed for excessive absence if the facts support it.

In a recent case, unfortunately a police motorcyclist was disabled after an accident. He was off work for 8 months after which time the employer embarked on its procedures for dealing with continued absences from work. This involved the employee receiving warnings and requirements to return to work by a specified date. This was despite the fact that medical evidence made it clear that he would not be able to comply.

The employee successfully argued that these processes amounted to unfavourable treatment because of something arising as a consequence of his disability. The employer did not dispute the fact that there had been unfavourable treatment but the Tribunal was invited to consider whether the employer had demonstrated that its action was justified. The employer argued that the absence management policy was legitimate. The Employment Appeal Tribunal disagreed. All 'treatment' has to be a proportionate means of achieving a legitimate aim.

Employers should therefore review their attendance policies and procedures. Any properly drafted procedure will require the employer to look at the particular circumstances of the case to decide what is appropriate. There has to be flexibility and the employer should always keep in mind whether the steps taken amount to unfavourable treatment.

Employers should not only ensure that their written policies are up to date but that the staff implementing the policies have been properly trained and can deal with the situations fairly. It is often human error or a lack of understanding on the part of management which leads to claims being made by unfairly treated employees.

To discuss this or any other employment related issue contact us.

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