Well adjusted? Disciplinary proceedings for disabled employees
Many employers are not comfortable where it is clear that employee illness or disability means that a 'textbook' disciplinary approach might not work…
Most employers are aware of the importance of following a proper process when disciplining, and ultimately dismissing, an employee and try their best to stick closely to the terms of any disciplinary policy. However, many are less comfortable where it is clear that employee illness or disability means that a 'textbook' approach might not work well.
Where any aspect of the disciplinary process might place a disabled person at a 'substantial disadvantage' compared with people not sharing that disability, then the employer will need to think about what adjustments it could make to the process to accommodate that employee. Failure to do so may result not only in a claim for disability discrimination but also of unfair dismissal, if the employee alleges that a fair procedure was not followed.
Some common problems that may crop up during the disciplinary process are outlined below.
Too unwell to attend?
It is a common problem for employers that an employee requested to attend a disciplinary hearing will absent themselves from work, citing stress or depression as the cause. The employer is often caught in a tricky situation – between the need to resolve the disciplinary situation quickly and effectively whilst remaining sensitive to the absent employee’s ill health.
Whilst no disciplinary process should be allowed to drag on unnecessarily, it is important to give an employee who is unwell a little time and space. It may be appropriate to postpone the hearing for a short while, for example, to allow the individual to receive treatment. For example, in the recent case of Nunn v Charles Robertson (Developments) Ltd the Claimant, who had been off sick for two months, was dismissed in his absence when he stated that he felt too fragile to attend a hearing. The Employment Tribunal found that his employer had jumped the gun – and should have made the reasonable adjustment of postponing the hearing until he was well enough to attend.
Medical evidence from an Occupational Health Service, or from the employee's own GP, will be invaluable in deciding whether postponement is reasonable and for how long.
Consideration could perhaps be given to alternative ways of conducting the disciplinary hearing, for example by telephone, at a neutral location, or even at the employee's home address. A stressed employee may prefer to make written submissions rather than attending the hearing in person.
It is also important to view the situation 'in the round' and consider whether the employee's stress or depression could have contributed to their misconduct. For example, has a distracted employee made an error? Has a usually calm individual had an uncharacteristic angry outburst? In some circumstances, it might be appropriate to consider suspending disciplinary action, or even dropping it altogether, in order to support the employee with an appropriate stress management programme.
Problems with the papers
Some disabled employees may struggle with the huge amount of paperwork generated by the average disciplinary case. For example employees with dyslexia or any form of learning disability might face significant difficulty in dealing with witness statements, documentary evidence, or perhaps even routine correspondence. In this situation, the simplest adjustments may have a huge impact. Perhaps such employees could be given further time to consider evidence or check and return minutes of meetings. Consider whether the language used in correspondence is daunting or could be simplified. An employee who struggles with the written word due to disability may prefer to discuss meeting notes face to face rather than pointing out discrepancies in writing. Maybe a Trade Union representative or impartial manager could act as a scribe to record their input? Be pro-active and make suggestions if you foresee any problems.
Meeting half way
Many disabled employees may require a little extra support at stressful face to face meetings.
The legal right to be accompanied at meetings is narrow. The law entitles an employee to be accompanied at a disciplinary hearing by a Trade Union representative or work colleague only. It may be appropriate to take a broader approach for disabled employees, perhaps allowing a friend or family member from outside the workplace to attend as a companion.
A number of recent cases bring home the point that an employee should consider allowing an employee with special needs to be accompanied by a companion with specialist skills.
For example, in the case of Di Benedetto v Guy's and St Thomas' NHS Foundation Trust the Claimant, a kitchen assistant who had a learning disability and low IQ, was called to a disciplinary hearing after an ambulance driver alleged that she had spat in his drink. However the letter calling her to the hearing contained long words and phrases she did not understand and she was not provided with representation. The Employment Tribunal found that it would have been reasonable to provide her with an advocate, in the form of a learning disability advisor, as well as using more appropriate language in correspondence.
Similarly, in the established case of Taylor v OCS the Tribunal found that a profoundly deaf employee who was not provided with a sign language interpreter for the full duration of his dismissal and appeal hearing had been unfairly dismissed. This omission was complicated by the fact that, amongst other things, he had not been provided with any written information in advance of the hearing. He had not been able to effectively engage in the process or put forward his case.
When it comes to unfair dismissal, the law is primarily concerned with whether the individual employer acted reasonably in all the circumstances. There is therefore no 'one size fits all' answer for every case.
Though the adjustments recommended by the Tribunal in these cases may seem onerous, every case depends on its own facts. In most cases only minimal adjustments, easily achieved, will be necessary. What is 'reasonable' will largely be driven by the employee's personal abilities and challenges.
Having a detailed disciplinary procedure in place of course provides a sound framework for the objective assessment of any disciplinary situation. However, it is important to be flexible when faced with an employee who has (or may have) a disability. Listening to an employee's concerns about the disciplinary process, and taking steps to respond to their particular needs, will pay dividends at an Employment Tribunal.