Clarification of disability absence and attendance management

[TechnicallyLegal]

I have received the following (italicised below) from my HR dept with regard sickness absence due to a disability which is recognised/covered under the Equality Act 2010. I have an official medical diagnosis of this disability, although not a 'legal' one per se. My employer has also received 'advice' from the Occupational Health Service that my disability may also be recognised under said Act. Can someone just clarify what I am in receipt of here? I was also under the impression that the Disability Act had been superseded by the Equality Act 2010 in issues arising since October 1st 2010, as mine does, and therefore the Disability Act is not the appropriate Act to apply? Whilst I appreciate disability related sickness absence cannot be 'open ended' and protracted absence could result in medical retirement, can it also lead to dismissal? Thanks in advance.

"Just by way of clarification, whilst there is an element of caution that needs to be extended to any staff that are classed as disabled as per the Disability Discrimination Act, the law does still allow employers to take action to manage attendance appropriately.

We are required to make reasonable adjustments to policies & practices when applying to disabled staff, but occasionally even with reasonable adjustments, some employees’ attendance will simply be inadequate, and we will then need to consider taking action.

A legal ruling is necessary to decide whether someone is disabled for the purposes of the Act. Occupational Health Advisors can only ever offer an opinion as they have done in your case.

In most cases, reasonable adjustments will be more than sufficient to address any problems but on those occasions where reasonable adjustments fail to improve (or at least sufficiently) the attendance of staff, they should be treated in the same way as all other staff, with the disciplinary process followed as normal.

There are no hard and fast rules on what reasonable adjustments are – each case needs to be judged on its merits. ”Reasonable” also has to be considered in the context of the business, and what might be reasonable for a large multi-national company will not be the same for a smaller organisation.

Allowing for more sick leave than normal before taking formal action would also be deemed an appropriate adjustment for a disabled employee. This does not mean allowing unconditional sick leave, only a reasonable extra amount of time-off in the circumstances of the employment & the business."

[wales01man]

Re: Clarification of disability absence and attendance management

Whats the legal definition of disabled?

[cupidstunt]

Re: Clarification of disability absence and attendance management

yes it all looks correct.

Some people do still call it the dda, habit I expect.

tribunal are the only ones that can say you have a disability under the act, although there are a couple of ones that automaticly deem you disabled. thats why any other opinions will say probably or possibly disabled.

how much sick have you had, have they made any reasonable adjustments, can you come up with any that might help.

yes could be dismissed under capability, but they would need to be water tight if they did.

it's very expensive and no real gain from tribunal proceedings.

best to work with them and explain your problems and how they can help with adjustments.

[TechnicallyLegal]

Re: Clarification of disability absence and attendance management

yes it all looks correct.

Some people do still call it the dda, habit I expect.

tribunal are the only ones that can say you have a disability under the act, although there are a couple of ones that automaticly deem you disabled. thats why any other opinions will say probably or possibly disabled.

how much sick have you had, have they made any reasonable adjustments, can you come up with any that might help.

yes could be dismissed under capability, but they would need to be water tight if they did.

it's very expensive and no real gain from tribunal proceedings.

best to work with them and explain your problems and how they can help with adjustments.

I think it is fair to surmise that the response received is written in such a manner that it was extracted from a definitive legal communication, and therefore reference to the DDA is intentional rather than habitual. However as I understand it, the DDA was replaced by the EqA for issues arising after October 1st 2010, so the DDA (whilst still statute), isn't a relevant Act to apply. Perhaps someone can clarify?

Notwithstanding, by not taking into consideration the absences connected to the disability (which is their current position on the matter) the employer would appear to have made a "reasonable adjustment", the adjustment being that of relaxing their policy on attendance to acknowledge the disability.

At this stage, there are no formal nor informal proceedings taking place, merely some clarifying points on issues raised and the employer has thus far treated the situation sympathetically and been very supportive.

However, if this adjustment does not alleviate a symptom of the disability which is the main cause of the absence, i.e. overwhelming fatigue related to a chronic condition, and is merely acknowledging that additional absence is likely, would it therefore be reasonable for a further additional adjustment to be made, e.g. to the hours of attendance? [1] Indeed, does the adjustment the employer has made thus far extend enough to address the issue of attendance where the employer is aware that certain criteria exasperate the condition, e.g. long hours? By acknowledging more time off will be required, and then applying an absence management programme reactively, has the employer justified a reasonable adjustment which could exonerate them in the event of employee dismissal? Or should they be addressing circumstances which exasperate the cause of the absence before applying any absence management?

In terms of capability, no questions have been raised over ability to carry out the work under normal conditions of health, however, the condition itself may give cause for concern for carrying out certain aspects of the work when symptoms are present. Regretfully, it is a condition with a diverse range of symptoms and is not something which might be recognised as a solitary symptom, i.e. partially sighted. Other symptoms could permit working from home (where a suitable risk assessment had been carried out) due the nature of the symptoms being aggravated by, for example, office noise levels. A quiet working environment would see the employee as productive as if they were experiencing no symptoms at all. Such is the complex nature of this condition!

I guess, only a tribunal could definitively answer the questions posed, but viewpoint and discussion would be interesting.


[1] This would not be a reduction in hours, merely spreading the hours more evenly across the working week as opposed to bulking hours together into longer shifts.

[cupidstunt]

Re: Clarification of disability absence and attendance management

yes you are correct EqAct replaced DDA basically similar but bit more employee friendly.

but it don't mean sh't in real life, they don't get punished for breaking the law, just a little pay out to you, it's a farce. Best not to go that way.

they have to keep making reasonable adjustments until you are no longer at a disadvantage.

the onus is on them to come up with the adjustments, but you can give suggestions.