It has been reported this week that the Department for Work and Pensions (DWP) has been ordered to pay substantial compensation to a disabled employee who was dismissed after the DWP allegedly failed to follow its own procedures. It is understood that even though the DWP had obtained no less than eight occupational health reports, the employee was never assessed in person. The DWP are said to have initially refused to accept that the employee even suffered from a disability.
Judgments such as this serve as an important reminder for employers, when dealing with cases involving employees who suffer from medical conditions, to ensure that appropriate and fair procedures are followed. It is important in particular to bear in mind the following points:
- Be aware that for the purposes of the equality legislation a “disability” can cover an extremely wide range of conditions, both physical and mental. The key issue is whether the particular condition has a substantial and long term adverse effect on the employee’s ability to carry out normal day to day activities. For example, if an employee is absent from work on a long term basis due to severe anxiety, that could potentially amount to a disability depending on how that person’s day to day activities are impacted.
- Do not rely on medical advice alone to make a decision on whether you consider the medical condition amounts to a disability. Although a medical opinion will be very important, the test as to whether an employee is disabled is a legal one, not a medical one, so it is important to consider whether the legal test has been met.
- Even short term and intermittent absences from work could be caused by a medical condition which amounts to a disability. It is often the case that employers will issue warnings following trigger points after certain periods of absence. However, if the absence (or some of the absence) is due to a disability then it may be appropriate to discount the disability related absence. This will depend on the particular circumstances. It is therefore important to keep accurate records of the reasons for and length of absences in order that different absences can be distinguished and you are aware of any underlying health conditions.
- Other reasonable adjustments should always be considered to assist an employee with a disability. Each situation needs to be looked at very carefully, as each affected employee will have different needs. Examples of adjustments include allocating duties to other staff, altering hours of work, allowing work from home and providing assistance for physical disabilities such as a workstation which is adapted to take account of the particular medical condition.
- Where appropriate seek medical input from the employee’s own doctor or refer them to occupational health or a specialist. Employers should be extremely wary of deciding to take action, and in particular dismissing an employee, without medical advice having first been sought. It is also important to be aware of employees’ statutory rights, and inform them of their rights, under the Access to Medical Reports Act 1988.
It is important that employers do not make assumptions about what they think should be acceptable in terms of arrangements to assist disabled employees, and ensure that decisions which are made follow on from a process which is fair and transparent.
24 April 2023
Giles Woolfson
