When an employee takes too much time off sick, you would usually follow your organisation’s disciplinary procedure, issuing warnings and, if attendance doesn’t improve, potentially dismissing them for incapacity. But while ill-health incapacity is potentially a fair reason for dismissal, employers must also ensure they are not unlawfully discriminating against someone on the grounds of disability. This means taking a considered approach to managing absence when the employee’s time off work is connected to their disability.

In reality, some workers are likely to require more or longer absences than others and, depending on the circumstances, the law may expect you to make some allowances to avoid discrimination.

Disability discrimination law

For an employee to be protected under the provisions of the Equality Act 2010 by reason of a disability, their illness or condition must qualify as a disability under the legislation.

The Act defines disability as a physical or mental impairment that has a substantial and long-term adverse effect on someone’s ability to carry out normal daily activities. The definition includes people with hidden disabilities such as diabetes, epilepsy, mental health. It also covers past disabilities, and those with cancer, HIV and MS are automatically covered by the Act. To complicate matters further, case law also provides further direction on what is classed as a disability. The status of long COVID as a possible qualifying disability, for example, is currently the subject of tribunal decisions.

The definition is broad, potentially covering millions of people and conditions. This creates risk for employers who must use sound judgement and take legal advice when considering whether an employee’s illness or condition meets the statutory definition.

However, if you follow exactly the same procedure for a disabled employee that you follow for those without a disability, the employee may be able to claim that you indirectly discriminated against them. This is because you applied a provision, criterion or practice (such as an obligation to achieve a certain standard of attendance) to all employees but this disadvantaged the individual and people with their disability. If that disability results in above-average levels of sickness absence, it is harder for them to achieve your required minimum level of attendance.

Alternatively, the employee may try to claim discrimination ‘arising from’ a disability if your absence policy disadvantages them. To avoid either type of claim, you must be able to show that any resulting warning or dismissal was justified. It won’t be justified if there was a reasonable adjustment you could have made to avoid instigating your disciplinary procedure.

If an employee is dismissed because they had time off sick – that is as a consequence of a disability – and the employer knows, or ought reasonably to be expected to know that they have that disability, the employer will have to justify the treatment, on the basis that it was a proportionate means of achieving a legitimate aim.

If the employer cannot justify the treatment, it will amount to discrimination arising from disability. One of the things that will be taken into account in determining whether or not the treatment can be justified is whether, for example, there are any reasonable adjustments that the employer could have made to support the employee returning to work.

Reasonable adjustment

Reasonable adjustments are measures taken by an employer to support the worker in doing their job without disadvantage.

Taking a different approach to managing disability-related illness and non-disability related illness could come under the employer’s obligation to consider making reasonable adjustments.

Depending on the situation, you might consider these adjustments to your absence policy for disability-related absence:

• Modifying your absence triggers so the employee can take extra time off before they receive a warning.
• Counting the employee’s disability-related absences separately from their other absences and discounting an agreed amount of the disability leave before you invoke your disciplinary procedure.
• Allowing managers some flexibility over how much time off they let the employee have before issuing a warning.

To assess whether one of these adjustments would be reasonable, you should weigh up the impact on both the employee and the other members of their team who will have to cover for them while they are away. For example:

• Discounting an absence (or series of absences) that is likely to be a one off, such as a course of treatment that will enable the employee to return to work: likely to be reasonable.
• Giving an employee a few more days off each year before you give them a warning for poor attendance if this will enable them to remain in the workplace: likely to be reasonable.
• Disregarding a long absence if further time off is likely and there is little prospect of the employee’s condition improving: likely to be not reasonable.
• Keep a note on the employee’s file to show you’ve either implemented those adjustments to your absence procedure that were reasonable or established that there were no (or no more) reasonable adjustments you could make. This information will help you to defend any discrimination claim.

Counting separately

There are several issues to consider if disability-related absences are being separated from sickness absence and disregarded when counting the absences that lead to triggers for managerial action.

As an employer, it is generally advisable to work to the legal definition of a disability under the Equality Act. It will then be necessary for the organisation’s absence policy to state that where someone is absent for a reason relating to their disability, this absence will be counted separately from sickness absence, and will not be used in any calculation of absences used to trigger disciplinary procedures – or indeed from any other rights related to service – arising from absence.

It is unlikely that an employer would sign up to such a procedure without some kind of time limits and these would have to be negotiated.

Sickness records & redundancy selection criteria

Sickness absence can be used by employers as part of a redundancy selection criteria matrix.

Redundancy selection requires an objective assessment of each employee against the set of criteria, which can include their sickness absence record. However, employers must not include time taken off for disability-related absences. In order to apply the sickness absence criteria, managers must ensure that the employee’s sickness absence records are up to date for all their employees throughout the department, not just those that are at risk of redundancy, and ensure that disability-related absence is recorded separately and discounted from this scoring.

Advice for employers

In many cases, it will still be appropriate to disregard disability-related absence, or at least increase the threshold before a warning is issued. Much will depend on the medical evidence and other issues relating to reasonableness – for example, the practicability of the step, whether it will be effective in preventing the disadvantage and the extent of the disruption caused to the employer’s business. Under case law, there will come a time when the employer – with professional advice – can determine the situation is no longer tenable. At that stage, it may be appropriate to look at the entire pattern of absence.

Although the reasonable adjustments duty may result in a relaxation of rules relating to absence management, it does not require the employer to adopt a more generous approach to sick pay, for example, by extending enhanced sick pay provisions beyond what is offered to everyone else.

Some employers offer specific disability leave. This is planned or unplanned time off from work for a reason related to someone’s disability. It is a type of ‘reasonable adjustment’ which disabled workers may be entitled to under the Equality Act 2010.

References to ‘warnings’ and ‘disciplinary action’ in sickness absence policies are often unhelpful – clearly, absence that is genuinely related to the disability is not the employee’s fault. Perhaps some alternative terminology might be warranted for genuine ill-health cases – for example, referring to a ‘Stage 1 review’ rather than a ‘first written warning’, or a ‘Stage 2 review’ rather than a ‘final written warning’. The point is to make clear that the employer will take active steps to support the employee in improving attendance within a structured process, but ultimately there is a cut-off point beyond which a capability dismissal will be considered.

Need assistance?

Combating disability discrimination at work requires action beyond dealing with individual discrimination complaints. Employers have a responsibility to consider what measures they can take to avoid cases of discrimination occurring by taking a proactive and informed approach to reviewing workplace practices and policies to ensure compliance.

DavidsonMorris are experienced employment law specialists offering guidance and support to employers in relation to disability discrimination. We have extensive experience in helping employers avoid and resolve workplace discrimination issues.

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.

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Last updated: 10 June 2022