Claiming anxiety, an employee takes long periods of sickness absence. She won’t discuss the issue with HR, doesn’t attend scheduled meetings and puts the phone down on her employer. Can the company fire her and avoid a challenge from the Disability Discrimination Act (DDA)? Martin Schmalenbach gives his advice.
To come under the Disability Discrimination Act (DDA) the condition or disability has to be ‘proven’ and not short term, i.e. longer lasting than 12 months.
The DDA entitles the person to be treated no less favourably than any other in the organisation. So, if there is a history of anxiety, document everything. Whatever the actual issue, follow due process!
Under DDA the employer must make “reasonable adjustments” which could include, for example, time off to sort out the personal issues, reduced working hours (arguably at pro-rata reduced rate, lest you be in danger of setting precedent for the future).
Reasonable adjustments don’t have to last for ever – six to nine months maximum. At the same time you are going through due process – stage one letter, verbal warning, written warning, final warning and if necessary, dismissal, all of which can take six to nine months – try to circumvent this and you’ll be on tribunal with an automatic unfair dismissal, where the damages will be increased by 50%!
Reasonable adjustments are focused on being ‘disadvantaged’ by the work environment, not the condition, so you don’t have to make reasonable adjustments because of the condition.
For example, an incontinent disabled person requests a disabled shower be installed at work as they want to be clean after an ‘accident’. Cost is £3K. The employer is not required to install it because this particular situation is as a result of the condition, not the work environment, and the £3K cost is unreasonable in the circumstances.
For capability (if employed for less than one year), personal problems may be a legitimate reason for reduced capability and the employer should consider what help they can provide to aid the employee through the period of personal problems. Competence – do they need additional training? ACAS suggest a period (doesn’t have to be ‘too long’) of informal coaching perhaps, prior to going to a stage one letter.
Of course, if the person can’t or won’t come in due to medical reasons, then you again need to follow due process, ask for the company doctor to see the person – you don’t need to know the medical details and nor are you allowed to without consent, all you need to know is that the person will improve enough or not in a reasonable period of time.
You aren’t obliged to continue to employ in the longer term people who can’t do the job, DDA or not, but you are required to follow due process, and it will take six to nine months from when you start (stage one letter).
As things progress, you may wish to get legal advice.
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Sickness absence and DDA
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