Employers in the UK are too shy to investigate disabilities causing them to fall foul of regulations imposed under the Disability Discrimination Act (DDA); according to employment law firm Withers LLP.
The obligations of the DDA have been extended to businesses with fewer than 15 employees as of 1 October 2004. This means that if an employee is suffering from a disability, defined as a ‘mental or physical impairment which has a long term adverse effect on his/her ability to carry out normal day to day activities’, then the employer immediately acquires three additional duties:
- a duty not to discriminate against the disabled person
- a duty not to victimise them
- a duty to make reasonable adjustments for the benefit of the disabled person
Problems occur says Meriel Schindler, Head of employment law at Withers LLP when an employee is frequently absent and the employer fails to investigate the root causes.
“It is always unwise to dismiss an employee who has been continuously or intermittently sick without finding out precisely what is wrong and what the prognosis is.
“Employers are often too shy to ask the employee in question. Such coyness can be very costly. Turning a blind eye to an employee’s difficulties at or absences from work out of a misplaced sense of prudery will never be the right reaction.”
Schindler goes onto say that an employer may face a claim for unfair dismissal and/or disability discrimination and she warns:
“Whilst the compensation for unfair dismissal is capped by statute, the compensation for disability discrimination is uncapped. Such claims also attract adverse publicity and may well have a detrimental effect on staff morale.”
Withers LLP outline the correct procedure below:
1. Ascertain the root of the problem
Get to the root of the problem by asking the employee and his doctor what is wrong with the employee.
2. Review employee’s contracts
Employment contracts should allow the employer to send the employee to an independent doctor who in turn has access to the employee’s existing medical records.
3. Be aware of your duties under the DDA
Since October 2004, all employers have had a duty to make reasonable adjustments for the benefit of the disabled person. It means that the employer has to explore whether it can modify working practices and policies or physical features of the work place to avoid putting the disabled person at a substantial disadvantage in comparison to people who are not disabled.
4. Take action
If it is clear upon the response of medical advice and a detailed exploration of what might be feasible, that no reasonable adjustment is possible then the employer may have no option but to dismiss. In those circumstances, the employer should not only act with compassion but also follow the recently introduced statutory disciplinary rules.
