Sickness absence - retention of disabled employees
11.1. Background
The Equality Act 2010 has made it unlawful for an employer to treat a disabled person less favourably than someone else in all employment matters because of their disability, unless there is a justifiable reason. The Equality Act also places an obligation on employers to help a disabled person retain a job by making reasonable adjustments to the work or the workplace.
Retaining staff who become disabled is one of the commitments the Council has undertaken both under its Equality of Opportunity Policy and its obligations to good employment practice as a "Double Tick" symbol user. The Council will make every effort to retain the skills and experience of staff who becomes disabled or whose disability deteriorates.
For this Sickness Absence Procedure, the definition of disability is that given in the Equality Act 2010. Disability is defined as "a physical or mental impairment which has a substantial and long term adverse effect on the ability to carry out normal day-to-day activities." Therefore disability can be clearly differentiated from sickness or illness in that it will probably involve a change in the employee's ability to function which is likely to be long-term rather than temporary.
Fit for Work or the Council’s Occupational Health Services may advise that they believe that the Equality Act could cover the employee’s condition. As only an Employment Tribunal can make a decision as to whether the employee is disabled for the purposes of the Equality Act, managers are advised to treat employees with an ongoing condition as potentially covered by the Equality Act. Sickness absence related to disability may be discounted in relation to trigger points.
This process will apply regardless of how a disability develops.
12. Stages in the Process
12.1. Identifying the issues
In some cases, identifying that an employee has become disabled may be straightforward, for example, where an employee has an accident. Other cases may involve a disability which develops progressively (e.g. sight or hearing impairment), where the employee remains at work and the manager identifies a loss of function or productivity at work.
Discussions with the employee should take place at an early stage to establish the position and the employee should be kept informed and fullyinvolved. At all meetings, the employee should be given the opportunity to be accompanied by a Trade Union representative or a work colleague.
Advice is available from a number of sources, as appropriate, including:
• Human Resources
• Harrow’s Disability Adviser
• Occupational Health Services
• Specialist employment advisers e.g. R.N.I.B.
• Access to Work
A period of leave for the employee should be considered to allow time for assessment or rehabilitation training. Where the employee is currently on sick leave, the period of sick leave will be extended by up to 4 weeks, if necessary to encompass a period of retraining. Where the employee is able to continue to work pending the assessment/training, the employee will normally be granted paid "disability leave" of up to 4 weeks to attend. The assessment or rehabilitation training must be provided by a recognised body. Consideration may be given to a further period of paid/unpaid leave at the manager’s discretion.
Where an employee who is within his/her probationary period needs to take disability leave, the probationary period will be extended to take account of the training/assessment period.
12.2 Considering the options
12.2.1 Option 1 - Retain the employee in his/her own job
Every effort should be made to retain the employee in his/her own job if the employee wishes to do so and before other options are considered.
If an employee with a disability is experiencing difficulties in performing their duties, the manager should consider reasonable adjustments including:
• Job redesign
• Temporary or permanent reassignment of specific duties
• Allowing sickness absence for rehabilitation, assessment or treatment
• Changes to work environment e.g. location, lighting, layout
• Provision of aids and adaptations and other support (These may be available under the Government "Access to Work" scheme)
• Flexible working (e.g. job share, part time or working from home)
Where reasonable adjustments, including adaptations or equipment, are recommended following an independent assessment, managers must respond quickly to implement recommendations.
In addition, the following should be considered:-
• A period of training or re-training may be necessary.
o The employee's confidence and productivity may suffer during this time and a period of adjustment may be necessary.
• A phased return to work may be appropriate.
o Information and awareness of the disability by the employee's manager and colleagues.
12.2.2. Dismissal on sickness absence grounds
Dismissal on the grounds of sickness absence should be considered as the final option only after option 1 above has been fully explored. A formal sickness absence meeting should be arranged for a dismissal to take place.
During the employee’s notice period, redeployment should be explored.
A further referral to the Government’s Fit for Work Scheme or the Council’s Occupational Health Service may be necessary for final medical advice before a decision to dismiss is taken at the sickness absence meeting.