Appendix 3

Disabled Employees - The Equalities Act 2010

The Equalities Act defines disability:

If you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.

  • The Equalities Act requires employers to treat disabled employees equally with all employees in relation to all aspects of employment
  • Disabled employees have the same entitlement to sick leave and sick pay as other employees
  • Subject to some exceptions, disabled employees should be treated equally with other employees in relation to managing sickness absence

Sickness absence and disabled employees

Many managers are likely to have concerns about health issues relating to disabled people and, whether having a disability will affect an employee’s attendance at work. In many instances such concerns are based on the misconception that disabled people have a health problem, but in fact there's no reason why a disabled employee should need more time off due to sickness than other employees.

We must be aware that:

  • A disability is a physical or mental impairment which affects a person’s ability to carry out certain tasks and it doesn't necessarily have any effect on the disabled person’s overall health
  • Some disabilities, however, are caused by impairments which are associated with health problems
  • Some disabled people may be reluctant to take time off for sickness, even when it is really necessary. A disabled person who has had difficulty in finding a job may be anxious about taking sick leave and thereby fulfilling stereotypes about disabled people being ill
  • As a manager you should therefore, discuss concerns about an employee’s health at an early opportunity and apply a consistent and fair process

Time off for medical appointments or treatment

To fulfil duties under the Equalities Act it will generally be enough to ensure that disabled employees have the same entitlements for time off as other employees. There may, however, be some circumstances when it would be considered a reasonable adjustment to allow a disabled employee time off to receive treatment, and it may be reasonable to for an employee to receive this time off at full pay.

Disabled employees and persistent short term absences

The same procedure should be used when handling issues relating to disabled employees as for other employees; however, you may decide that suitable adjustments are required, for example, accepting a slightly higher level of sickness absence if the disabled employee needs time off for treatment or hospital appointments relating to their impairment.

You may also decide to provide additional support and equipment or change some of the duties of the job, if practicable.

Can a disabled employee be dismissed for high levels of sickness absence or long term sickness?

If a disabled employee reaches the point which would trigger procedures under long term sickness absence then the normal review should be undertaken to decide what action should be taken. This should include discussion with and obtaining a report from the Occupational Health Physician.

If a disabled employee can no longer do their current job, options to be considered are:

  • Changing some of the duties of the job
  • Providing additional equipment or assistance
  • Redeployment to another job
  • Agreeing a temporary or permanent reduction in hours
  • Early retirement on health grounds
  • Dismissal on health grounds where the employee does not meet the criteria for ill health retirement

Financial assistance for employers of disabled employees

The Access to Work program is a government funded scheme which provides financial assistance towards the extra costs of employing someone with a disability. It can apply to any job, full time or part time, permanent or temporary.

Examples of the type of support available include:

  • Adaptations to a vehicle, or help towards taxi fares or other transport costs if someone can't use public transport to get to work because of their disability
  • Equipment (or alterations to existing equipment) necessary because of an individual’s disability
  • Alterations to premises or a working environment necessary because of a person’s disability

Applications for Access to Work must be made by the person with the disability on an application form. Forms are available from Access to Work, although it is the individual who completes the form, the manager concerned should be involved in the process.

It's important to note that Access to Work funding is not available retrospectively. It won't refund any payments that have already been made towards the cost of the reasonable adjustments.

The key issues in respect of the Equalities Act are:

  • To ensure that disabled employees are not treated less favourably than other staff. This means it would not be permissible to dismiss a disabled person for absenteeism through illness if another employee would not be treated in the same way if they had the same amount of sickness
  • To make any reasonable adjustments which would enable an employee whose sickness is related to a disability to stay in employment