The Education HR in the North West ConferenceJanuary 2018, ManchesterCapability and disability

Agenda

Three main areas:-

• Disability – Definition and Risks

• The role of Occupational Health

• Capability dismissals

Disability - Definition and risks

Definition of disability

Section 6 Equality Act• Person is disabled where they have a physical or mental

impairment ‘substantial’ and ‘long-term’ negative effect ontheir ability to do normal daily activities

• ‘substantial’ is more than minor or trivial, eg it takesmuch longer than it usually would to complete a dailytask like getting dressed

• ‘long-term’ means 12 months or more, eg a breathingcondition that develops as a result of a lung infection

• ‘day to day activities’ is things like walking, reading,buying a paper.

Discrimination claims

• Four main types of discrimination claims relevant todisability• Direct discrimination• Indirect discrimination• Discrimination arising from a disability• Duty to make reasonable adjustments

• Focus today is on reasonable adjustments

Duty to make reasonable adjustments

• What is the provision, criterion or practice (PCP) and what is thedisadvantage?

• What can you do to remove the disadvantage?• Potential adjustments

• Auxiliary aids• Redeployment• Modifying trigger points in absence policy• Modifying grievance and disciplinary procedures• Change in duties• Phased return• Sick pay?

Duty to make reasonable adjustments (contd)

• It is for management to determine if an adjustment is reasonablebut what factors should be considered in deciding if something isreasonable? i.e.• The extent to which it gets over the disadvantage• The extent to which it is practicable• The financial and other costs of making the adjustment and

other resources available to the school• The extent to which the adjustment disrupts the school's

activities• The availability of external financial or other assistance• The nature of the employer's activities and the size of the

undertaking

When might disability become an issue?

1. Recruitment2. Performance – ie their capability

• Is performance affected by the disability?• What adjustments can be made?• Does the employer have to accept poor performance from

a disabled employee?

When might disability become an issue? (contd)

3. Absence• Recognising a disability

• Easier in cases of long term absence• Always consider the possibility of underlying conditions in

short term absence cases• Reasonable adjustments• Potentially need to consider dismissals due to ill health• Obtain medical opinion in relation to fitness for work for

example from Occupational Health (OH)KEY POINT: In reality you will exercise good management practicein terms of support whether the employee is disabled or not.

The role of Occupational Health

OH reports

What is the purpose of the report?– To obtain advice: To remove barrier to return to work, OR To remove barrier to a fair dismissal (if applicable), To advise on health of individuals where there are other ongoing

internal processes (eg disciplinary/capability), To support an employee where they are genuinely unwell.

– To determine: underlying medical condition, the likely timescale re return to work, whether an employee has a disability that impacts on work, any reasonable adjustments.

Role of occupational health in dealing with health issues

Provides advice to management and is helpful in identifyingsupport that employees may need.

GP is the patient’sadvocate

OH should take amore balanced view

You are entitled to follow OH advice, rather than GP’s.

Possible questions for OHU

What is their condition and itsprognosis?

Is the employee considered to bedisabled under the Equality Act

2010?

If so, are there any reasonableadjustments?

How does the condition impact ontheir ability to carry out the duties(as set out in the job description)?

Is there an underlying medicalcondition affecting attendance?

Is further absence likely? If so whatlevel of absence is likely based on

this condition?

What you should get from OHUClear and actionable advice

A response to each question you ask

An outline of treatment in place

Recommendations for adjustments

Recommendations on fitness for work

Timescales for return to work

Capability dismissals

Capability issues

• This is about an individual’s capability (or not) to do the job.• Identify the concerns, provide support and review the

situation (including issuing a series of warnings). This willhopefully improve the performance.

• If the employee has a disability, you should still managetheir performance in the normal way but make sure you haveput in place reasonable adjustments which will then supportthe employee to their job.

• If there is no improvement then ultimately this could lead todismissal

Capability Dismissals (1)

• Capability is one of the fair reasons for dismissal• Before any capability hearing

– Write to the employee Summarise absence history and medical advice Advise that dismissal might be an outcome Date, time location of meeting Right to be accompanied

• Meet with the employee– Explain background and purpose of meeting– Opportunity to raise and address any concerns– Impact of employee’s absence– Adjourn if necessary– Always consider alternatives to dismissal

• Appeal

Capability Dismissals (2)

• Questions to ask:-– Have we done all we reasonably can?– How would this look to an ET

• Some cases, employee off for years• Unhelpful to:-

– Employee– Organisation– Colleagues

Avoiding employment Tribunal Claims• Act promptly• Know the absence policy well, and follow it consistently• Effective Line Managers in place to manage• Keep detailed records and notes of meetings• Perform your return-to-work interviews and review

meetings• Consider disability and as a consequence reasonable

adjustments• Gather appropriate medical information• Don’t pre-judge the outcome of meetings

Summary

• Disability creates risk – but does not stop you doing what youneed to if you are reasonable.

• Managing risk is about being able to say ‘we did all wereasonably could’.

• OH have a vital role to play.• The law allows you to dismiss for capability.

www.brownejacobson.com/education

Ian Deakin | +44 (0)330 045 2265 | Ian.Deakin@brownejacobson.comEleanor Drabble| +44 (0)330 045 2108 | Eleanor.Drabble@brownejacobson.com

Please note

The information contained in these notes is based on the position at January2018. It does, of course, only represent a summary of the subject matter coveredand is not intended to be a substitute for detailed advice. If you would like todiscuss any of the matters covered in further detail, our team would be happy todo so.

© Browne Jacobson LLP 2018. Browne Jacobson LLP is a limited liabilitypartnership.