Well adjusted? Disciplinary proceedings for disabled employees

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.

Signed off sick with stress? 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, as that in itself can be a hallmark of unfairness, 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 reasonable time to receive treatment. For example, in the 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.

In a recent case, Harvie v Scottish Ambulance Service Board, a tribunal held that, given that the claimant’s dyslexia impaired his ability to articulate matters, the employer should have adjusted its disciplinary process to by postponing its conclusion for a short period, so that it would have the benefit of knowing the outcome of criminal proceedings related to the misconduct allegation. Had it done so, it would have known that the criminal assault charges were dropped shortly after the disciplinary hearing because CCTV footage showed the employee had acted in self defence.  

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.

For more information, read our HR Rely team's guide to stress absence during disciplinary proceedings.

Problems with the papers

Some disabled employees may struggle with the significant 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 at meetings or the hearing?

Reasonable adjustments to the right to be accompanied

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 employer 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.

Also, in Crew v Three Milestone Education Ltd the tribunal criticised the employer, which was aware of their employee’s established anxiety and depression, but did not allow her mother to accompany her to her disciplinary hearing. The tribunal also found that the employer’s failure to make this “easy” adjustment also amounted to disability related harassment.

Duty to be reasonable

When it comes to unfair dismissal, the law is primarily concerned with whether the employer acted reasonably in all the particular circumstances. There is therefore no 'one size fits all' answer for every case.

Whilst we have suggested some possible adjustments for the various aspects of a disciplinary process or hearing, and it is wise to be pro-active and make suggestions if you foresee any issues, it is also critically important to engage with the individual and ask them how their condition affects them and what adjustments they think would help.

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 and following it of course provides a sound framework for the objective assessment of a disciplinary situation. However, it is important to be flexible when faced with an employee who has (or may have) a disability. Anticipating and / or 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.