From 1 October 2010, the Equality Act replaced most of the Disability Discrimination Act (DDA). However, the Disability Equality Duty in the DDA continues to apply. Find out about the protection and legal rights the Equality Act provides for disabled people.
When carrying out any procedures in cases of sickness absence, an employer should consider whether the illness constitutes a disability within the meaning of the Disability Discrimination Act 1995/Equality Act 2010. These Acts have ensured significant rights for disabled people to prevent discrimination.
Discrimination occurs when a disabled person is treated less favourably than other people for a reason related to his or her disability, and this treatment cannot be justified.
Discrimination also occurs if an employer fails to make reasonable adjustments to ensure that employment arrangements or premises do not put a disabled person at a disadvantage in comparison to a non-disabled person and the failure cannot be justified.
It is important that the employer takes such appropriate steps as are necessary according to the individual circumstances of the case to gather information upon the true medical position. Full records of the absenteeism should be kept and these should be drawn to the employee's attention.
In the case of prolonged or excessive sickness absence the employer may wish to submit the employee to an independent medical examination; however, this process should be made clear in the employee’s contract of employment.
Referral to a medical practitioner. In the case of sickness, after an initial meeting with the employee, the employer may feel it necessary to consult with a medical professional to ascertain the nature of the employee’s illness. This may be with the employee’s own GP or with an independent doctor appointed by the employer. The employer will need to obtain consent from the employee before consulting with a doctor. The employer may not insist on this consultation and, if refused, a determination will have to be made based on the information available.
The employer is also required to consider what reasonable steps may be necessary to address such working conditions that may be contributing to the employee’s illness (e.g., workload). Where possible the employee should be made to feel as comfortable as possible within the commercial property.
If possible, it might be necessary to offer the employee alternative employment if In cases of genuine illness, particularly if the sickness is pregnancy related, employers should be wary of invoking disciplinary procedures.
Disciplinary procedure. If there is no apparent underlying medical condition, no issue with work, and the absenteeism is at a level to justify it, a warning should be considered as the next step. Any disciplinary procedure invoked should always be compliant with the Acas Code of Practice,
which came in to effect in April 2009.
Of course, not all illnesses have physical manifestations. In recent years, the mental health of employees has become of equal importance, especially as profit margins tighten and fewer people are expected to take on a greater amount of work. Just because an employee doesn’t appear to be ill, does not mean that they shouldn’t be afforded the same consideration as someone with an obvious impairment.
In the case of frequent unauthorised absence or issues of punctuality, a firmer line may be taken. In a tough economic climate, it is unacceptable for employees not to attend work for frivolous reasons such as demanding social lives, poor planning, and sheer laziness. Late trains, road works, broken alarm clocks are all valid reasons for someone being late for work occasionally. However, if these excuses are being offered on a regular basis, then there might be a deeper problem in evidence, such as issues concerning management, working relationships and hours.
Does your company offer flexible working? This may be a policy to consider, especially if your customers and clients do not expect a particular service at a particular time. It may be possible to offer your staff a flexible start and finish on condition that operational effectiveness isn’t impacted and that they work their contracted amount of hours. It has been shown that rigid 9-5 cultures are less productive than those that allow freedom to responsible employees. However, it is imperative that staff are made aware of the company’s lateness policy.
This should explain:
- Any consequences of persistent lateness
- The required standards of timekeeping, i.e. working hours, any flexi-time or flexible working arrangements
- The possible results of a disciplinary procedure
- How you will monitor time keeping, for example with a signing in sheet or clocking in machine
- If and how they will have to make up any time they have missed
- Who they should report lateness to if they know are going to be late and by when.
The policy should be properly communicated to all employees, and enforced fairly and consistently. If your employees know that lateness is being monitored and taken seriously, they are more likely to observe good time keeping practices.
Employees have the legal right to request flexible working if they:
- Have parental responsibility for a child under 17 - or a disabled child who is under 18 and receives disability living allowance
- Are carers of certain adults.
You must always consider such requests seriously.
When assessing any form of workplace absence, it is important to consider the following:
- The length of the various absences and the space of good health between them
- The likelihood of recurrence on a regular basis
- If due to sickness, is the condition verifiable, i.e., has it been confirmed by a medical professional?
- Performance in the role – have there been signs of under-performance?
- Any underlying issues that might be exacerbating the situation
- Employee’s concerns about working conditions or expectations
- The duration of the absence
- Are there patterns to the absence, e.g., does the employee take every Monday morning off?
- The employer’s need for the work to be done
- The impact of the absences on others who work with the employee
- The length of the employee's employment and any previous good record
- The extent to which the difficulty of the situation and the position of the employer has been made clear to the employee. Do not be afraid to explain that the situation has become untenable.