Here at the Occupational Health Business Ltd we try to do things differently and look for ways to help our clients which are a little bit different. We like to get them thinking and open up a debate, we answer the frequently NOT Asked Questions in Occupational Health . Today, we ask: Can I discipline an employee with a medical condition’?
So often there is a section on websites called FAQ….the most common questions asked by people about that particular topic or company. But, what about all those questions which should be asked, but aren’t? Are they really the most important questions? So, what should be on the list of Frequently NOT Asked Questions?
Number one for me is ‘Can I discipline an employee with a medical condition’? Managers sometimes struggle to identify who has a medical condition which falls under disability legislation or to even be aware of the obligations under The Equality Act.
The short answer to this question is no….you cannot discipline someone if their medical condition falls under the Equality Act 2010. I regularly see situations where these employees are given action plans to improve their attendance. But, how can they? Often it’s in these situations where managers can start to make judgements on the worthiness of the employee’s medical condition. Asthma is seen as less worthy for example than someone who has cancer.
Employers don’t generally complain about employees taking time off FOR MORE CHEMOTHERAPY. But for someone taking time off with regular disabling asthma attacks, the sympathy is often not there and they can find themselves in the final stages of the disciplinary process.
Absences which relate to disability should be recorded as such and not included as part of any attendance management policy. Employers can however sometimes miss this point and policies can fail to make this distinction. Often it is only at the end of a process which is about to dismiss an employee, when health issues are considered. But, how can these issues be managed fairly?
Referring to occupational health at an early stage will give you information about a medical condition and whether it may be likely to fall under disability legislation. This is however a legal and not a medical decision….in other words it may need to be tested in law at a tribunal. This information is crucial in managing attendance fairly and deciding how the employee’s attendance should be managed.
Occupational health will advise you about the medical condition and the impact it has on the individual and their present and future capability to work. We can also advise you on reasonable adjustments. Yes, a medical condition may be present and absence levels may be high, but is this because adjustments are not in place and the employee is struggling with a part of their job which is aggravating certain symptoms? Can reasonable adjustments be put in place and so absence levels improved?
For employees where absence levels are high and reasonable adjustments have failed to make a difference, there are other alternatives to consider. Sometimes seeking support from Access to Work or organisations such as the Shaw Trust can mean that equipment or resources can be funded to enable the employee to achieve an increased capability and maybe reduce absence levels. The GP cannot help in this area generally as their focus is on medicalising the absence rather than establishing the full capability of an individual to work.
Trying to implement what is recommended on a Fit Note can stranglehold a company into a never ending scenario of light duties which can be difficult to change at a later date.
So to summarise, no stone should be left unturned to see if capability levels and attendance can be improved. You will need to work with occupational health to establish and record that this has happened. An organisation however is entitled to say enough is enough and so if all interventions have failed to bring attendance up to even a minimal level then an employer can terminate a contract on
capability grounds.
So the answer to this frequently not asked question may be yes after all.