As an employer, dealing with employees who have disabilities can present challenges such as the need to consider reasonable adjustments both before a person is employed, during the interview stage and then throughout the employment relationship.
When an employer has to manage disability-related absence – this can be particularly difficult. Employers are concerned about the potential risks of being sued but are also conscious of the need to support and make adjustments where necessary.
A few recent Appeal Tribunal decisions have shown how the Tribunals are looking at the decisions which employers have made.
Mr R Kelly v Royal Mail Group Ltd: UKEAT/0262/18/RN
This case concerned a man with Carpal Tunnel Syndrome. He was deemed not to be disabled and OH had been involved and confirmed the same. As his attendance was poor, he was dismissed as it had triggered the absence policy. The Tribunal concluded that the decision to dismiss was a reasonable response in all the circumstances, the employer could not be held to have constructive knowledge, the dismissal was in line with their policy and OH had been involved and the employer had followed the guidance.
Mrs M Linsley v Commissioners for Her Majesty’s Revenue and Custom: UKEAT/0150/18/JOJ.
The Claimant had a stomach condition which sometimes meant she needed to go to toilet urgently. As part of an OH report, it was considered that she should have a dedicated parking space so that she did not need to search for a space which caused her symptoms to be aggravated. The respondent made several adjustments including different hours of work and a desk close to the toilet. The parking policy was that those with blue badges or where OH had made recommendations (amongst others) that a dedicated parking space should be given to the Claimant.
The tribunal said:-
“So long as the particular adjustment selected by the employer is reasonable it will have discharged its duty”.
The Appeal tribunal held that as the policy had not been followed by the employer the Claimant’s appeal was upheld. Had the employer followed the policy it would probably have come to a different decision.
Mrs B Baldeh v Churches Housing Association of Dudley & District Ltd: UKEAT/0290/18/JOJ.
The Claimant was a lady who had suffered with depression. She was dismissed following an unsuccessful probation period of six months for several reasons including the way she addressed colleagues. The Claimant submitted that the Respondent ought to have known about her disability as there had been complaints by fellow colleagues about her behaviour and the way she treated other members of staff.
It was sufficient for the “something arising in consequence” of the disability to have a “material influence” on the unfavourable treatment: the fact that there may have been other causes as well was not an answer to the claim.
The initial tribunal found that because there were four other reasons for the dismissal, they did not consider whether the reasons were due to ‘something arising in consequence’ of the disability. However, on appeal, the Appeal Tribunal found that this should have been given consideration and remitted the claim for a fresh hearing.
- Dismissal MUST be included within a disciplinary policy as a possible option / outcome;
- OH involvement is key as the employer is likely to follow their guidance. If OH guidance is followed and adjustments made, then if there is then a decision to dismiss, it is likely to be considered reasonable.
- Follow your own policy. In the case of Mrs Linsley, the issue was the stress of finding a parking space caused her condition to worsen / flare up – if she’d had a parking space this would have alleviated this problem.
- The employer doesn’t have to make the ‘best’ adjustment, but if an adjustment / adjustments are recommended (particularly if they follow a particular policy) then they should be implemented.
- Even if it’s a probationary situation, an employer must tread carefully as to whether the reason for the dismissal may be connected with the disability, particularly where it may be considered to be “something arising in consequence” of the disability which has a “material influence”.
- An employer needs to establish if an employee is disabled and whether they ‘ought to have known’ whether there was something which would put them ‘on notice’ of the Claimant’s potential disability.
- Potentially, employers need to have a policy regarding early disclosure of conditions so that support can be provided and adjustments can be made where necessary.
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