It is not uncommon for employers to treat disability leave in the same way as sick leave, even if an employee is not unwell but rather absent from work for a disability-related reason. This could include for treatment, rehabilitation or assessment. However, by treating disability and sick leave in the same way, this can expose an employer to a claim for unlawful discrimination.
In this guide, we look at what amounts to disability leave and how this compares to sick leave. We also look at the legal risks around disability leave and how this should be managed.
What is disability leave?
Where someone suffers from an ongoing illness or injury that amounts to a disability, aside from any disability-related sick leave, they may need to take time off work for a number of different reasons, from attending clinic appointments to undergoing treatment or therapy, or to cope with treatment side-effects. Disability leave is therefore any period of leave taken by an individual for a reason related to their disability. This can cover a range of absences from work, both planned and unplanned, for either short or prolonged periods.
There are also many types of disability that can be covered by law, where ‘disability’ is defined under the Equality Act 2010 as ‘any physical or mental impairment with a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities’.
The expression ‘substantial’ means something more than minor or trivial, for example, where it takes far longer than usual to do daily tasks, while ‘long-term’ refers to a period of 12 months or more, or is likely to last for at least this long. The definition of disability can also cover conditions that are recurring or fluctuating in severity, such as arthritis.
Disabled employees are therefore not just those in wheelchairs or with guide dogs, where what matters is that the employee’s impairment is having a significant impact on them, not what their diagnosis is. The law also covers people with hidden disabilities like dyslexia, epilepsy, schizophrenia and depression, as well as those with progressive conditions, such as HIV, cancer or multiple sclerosis. In fact, these progressive conditions are recognised as a disability from the point of diagnosis rather than the onset of any serious symptoms.
Given that the specific categories of disability are many and varied, affecting employees in different ways in terms of their ability to work, it can be difficult to tell just by looking at someone whether they meet the statutory definition. One in five of the UK’s working age population is disabled, although many of these people would either not describe themselves in this way or have made the decision not to openly discuss their disability for fear of being discriminated against. This means that many employers will have employees on their books who may be entitled to disability leave, but without the employer being aware of this.
What is the law relating to disability leave?
Under the 2010 Act, all employers are under a statutory duty to make reasonable adjustments to remove any disadvantage suffered by a disabled employee in doing their job role when compared with a non-disabled employee. This typically includes things like amended duties, altered hours, workplace adaptations or a phased return to work following serious illness or injury. However, disability leave is also a type of reasonable adjustment, allowing employees to take leave relating to their disability without facing detriment.
Allowing an employee to take a period of disability leave is actually cited as an example of a reasonable adjustment in the Statutory Code of Practice published by the Equality and Human Rights Commission (EHRC) that accompanies the Act. Some adjustments might be around trigger points for absence, for example, where the employer has in place a system that triggers a performance review if an employee reaches a certain number of absences. Alternatively, adjustments may need to be made to any redundancy-selection criteria based on attendance.
Case law has also established that employers are expected to consider paid disability leave for treatment, rehabilitation or assessment, or where the employee is waiting for other reasonable adjustments to be put in place, such as workplace adaptations.
In all cases, where taking time off work for a disability-related reason is likely to discriminate against a disabled employee, and the employer fails to make specific provision for disability leave, as distinct from any other type of leave, this will amount to unlawful discrimination.
What is the difference between disability and sick leave?
Disability-related absences can be divided into disability leave and sick leave by reason of disability. Typically, disability leave is a form of absence from work for anything other than disability-related sickness absence. Although not an exhaustive list, where the needs of each employee must be assessed individually, common examples of disability leave can include:
- any hospital, GP and other medical appointments or specialist check-ups
- any hospital or other treatment, including physiotherapy
- any cancer treatment and rehabilitation
- any recovery time after a blood transfusion or dialysis treatment
- blood tests for diabetes, cancer or other conditions
- any rehabilitation training for a newly disabled employee learning to manage a condition
- any assessment for conditions such as dyslexia, dyspraxia and hearing aid tests
- any counselling or other therapeutic treatment for a mental health problem
- any training with a guide dog or other assistance dog, or in the use of specialist equipment
- attendance at medical assessments for in-work benefits
- having disability-related equipment serviced or fitted
- any period of time spent waiting for the employer to make workplace adaptations, like the provision of a new work station or specialised equipment.
Whether or not disability leave also applies to disability sickness absence is a matter for the employer. In some cases, the employer may choose to have in place a workplace policy relating solely to absences for other disability-related reasons, where any period of sick leave by reason of disability will be addressed separately under a sickness absence policy.
In general terms, sick leave, whether or not this is related to a disability, will include any period of leave where the employee is deemed unfit to undertake their job role. If an employee is absent from work through illness or injury for 7 days in a row, they must provide medical proof of their fitness for work, usually by way of a fit note. For sick leave of less than 7 days, the employee can be asked to self-certify in writing the reason for their absence. However, even periodic absences of less than 7 days can be disability-related sickness absence.
How should disability leave be recorded?
Disability leave should always be recorded by the employer separately from any sick leave. This is to avoid any unfair treatment arising because of this. For example, where a performance review is triggered once an employee reaches a certain number of absences, disability leave for things like treatment and rehabilitation should be entirely discounted from any trigger calculations. Equally, to minimise the risk of unfair treatment when an employee is too unwell to attend work because of their disability, an employer should also discount some or all of any disability-related sick leave towards any trigger points or, alternatively, increase the number of absences that will trigger a review.
By recording both disability-related sickness absence and any distinct disability leave separately from ordinary sick leave, this will also mean that the employer is not unlawfully discriminating against a disabled employee in other ways. This could include where pay or bonuses are calculated using attendance records, or where levels of attendance are taken into account in any disciplinary or dismissal decisions, including selection for redundancy.
In cases of disability-related sick leave, this will often be managed in the same way as ordinary sick leave, in line with the procedures set out under any sickness absence policy. However, by asking employees on self-certification forms if their absence was related to a disability, this will help the employer to record these absences separately from ordinary sick leave.
Provided the employee is reassured as to fair and confidential treatment, asking employees to flag if any short-term sick leave relates to a recurring or long-term condition can also help the employer to identify any individuals who may be suffering from a previously undisclosed disability. The employer can then use this information as a basis to open discussions with the employee as to what reasonable adjustments can be made to support them at work.
How should disability leave be managed?
Having a disability leave policy in place, one which discounts non sickness-related absences by reason of a disability from any workplace policies or practices, will be classed as a reasonable adjustment under the Equality Act 2010. This could also extend to disability-related sick leave.
Some employers may include disability leave and disability-related sickness absence as separate sections under their standard sickness absence policy, while others may opt to create a standalone policy which deals specifically with disability leave. Either way, it is important that employers put in writing their policy and procedure for managing this type of leave. It is also important for employers to remember that treating everyone who is absent from work through illness or injury in the same way, does not mean that everyone is treated fairly.
A disability leave policy should set out the purpose and scope of the policy, together with an explanation of the law in the context of the protection afforded to disabled employees by virtue of the Equality Act 2010. The policy should also set out clear guidance on how an employee can go about requesting disability leave, with examples of the types of reasons for which a request can be made. However, the policy should also make it clear that each request will be assessed on its own merits, taking into account the individual needs of each employee.
When it comes to how much leave can be requested for non-sickness related disability absence, employers should consider whether or not to place a limit on the days per annum that may generally be taken as disability leave, subject to extenuating circumstances. By allowing for an element of flexibility, to cover unforeseen but appropriate scenarios, this will ensure that employees are treated fairly, depending on what is reasonable in each case.
Can an employee on disability leave be dismissed?
Disability leave can cover a range of absences from work for either short or prolonged periods. For employees on long-term disability leave, for example, those undergoing an extensive course of treatment, such as chemotherapy, or extended periods of rehabilitation, such as learning to walk again, any decision to dismiss during this difficult time may seem unfair.
However, there are certain circumstances in which dismissal can be justified. This is because, especially in respect of small businesses, there may be only a limited amount of time that the business can survive with an employee on long-term leave. In these cases, where an employee is no longer capable of performing their job role or meeting the required level of attendance, they may be dismissed on grounds of capability. However, by dismissing an employee on disability leave, this could amount to unlawful discrimination and automatically unfair dismissal, for which there is no qualifying service requirement.
Dismissal in these circumstances, even where there is no prospect of the employee returning to work in the foreseeable future or because the number of absences is not sustainable, should only ever be used as a measure of last resort. The employer must first consider every alternative option to bringing employment to an end. This could include putting in place reasonable adjustments such as remote or part-time working, or any other adjustment that could enable the employee to continue to work for the employer.
The EHRC Code of Practice states that where a disabled employee is dismissed, the employer must ensure that this person is not being discriminated against. A decision to dismiss is likely to be directly discriminatory if the dismissal is made on the grounds of disability. If the dismissal is made for a reason related to the disability, it will amount to disability-related discrimination unless the employer can show that their decision is justified. The reason would also have to be one which could not be removed by any reasonable adjustment.
DavidsonMorris’ HR advisers support employers to create inclusive and supporting working environment for all employees, including those with disabilities. Working closely with our employment law specialists, we also offer guidance and support to employers in relation to preventing disability discrimination.
We can support the development of a compliant infrastructure, with policies and procedures that help to reduce discrimination risks. In the event of a workplace complaint, we can lead on resolving the issue, whether a grievance has been raised or a claim is being pursued against your organisation. In some circumstances, it may be appropriate and mutually beneficial to the employer and employee to consider bringing the employment contract to an end with a settlement agreement on terms agreed by both parties. We have extensive experience of leading on settlement negotiations and drafting contractual terms that support your commercial and reputational interests.
If you have a question or need help with disability discrimination, contact us.
Disability Leave FAQs
Is disability leave full pay?
The level of pay for disability leave will depend on the employee’s contract of employment, although employers are under a statutory duty to provide reasonable adjustments, including paid time off for disability-related treatment, rehabilitation and assessments.
Is there such a thing as disability leave?
Disability leave is any period of leave taken by reason of a disability. This is classed under the Equality Act as a ‘reasonable adjustment’, enabling employees to take time off work for things like rehabilitation, without this affecting attendance records.
What is the difference between disability leave and sick leave?
Disability leave is distinct from sick leave, where disability leave usually refers to time off work for disability-related reasons, such as attending clinic appointments or undergoing treatment, while sick leave is because the employee is too unwell to work.
What is a disability-related absence?
A disability-related absence could be where an employee is suffering from symptoms of ill health related to their disability, although it can also include time off work for treatment, rehabilitation or assessment, even the employee is fit for work.
Last updated: 21 July 2022