Failure to Make Reasonable Adjustments

One of the most important questions we ask when advising on employee performance or conduct issues is whether the employee has any underlying health conditions that might be affecting their behaviour.

Discrimination Arising from a Disability

Employees are protected under section 15 of the Equality Act 2010, which makes it unlawful to treat a disabled person unfavourably because of something arising from their disability. This protection can apply where an employee’s conduct, performance, or attendance is linked to a health condition that meets the legal definition of a disability. Employers also have a duty to make reasonable adjustments in the workplace for disabled employees.

Unfavourable treatment can be lawful if it is a “proportionate means of achieving a legitimate aim”. For example, an employer may be able to justify dismissing an employee on long-term sick leave if no reasonable adjustments can be made and there is no realistic prospect of their return to work.

Case Law

A recent tribunal case has highlighted the risks of overlooking the role that disability might play in conduct cases, and failing to consider reasonable adjustments.

In the case, a chef was dismissed after shouting abusive language at a colleague she had been in a relationship with, specifically saying, “you f**king made me love you then you cheated on me you c**t” in front of guests. Her employer was aware she had anxiety and depression, but no medical advice was sought before deciding to dismiss her for gross misconduct.

Although the employee did not cite her mental health conditions during the disciplinary process, (she also did not apologise for her actions or attend the appeal hearing), the tribunal found that her outburst, and behaviour during the process were influenced by her disabilities. It found that she had been placed at a substantial disadvantage compared to someone without her condition, and that the employer had failed in its duty to consider reasonable adjustments or to seek appropriate medical input.

The tribunal did not find the dismissal to be unfair, but it did conclude that the failure to obtain medical evidence was discriminatory. The judge ruled the employer had failed to make reasonable adjustments for the claimant, as it did not obtain medical evidence before dismissing her, despite finding there was an 80% chance they would still have dismissed her with medical evidence. The claimant was awarded £13,500, including £11,000 for injury to feelings.

Key Learnings

The takeaway from this judgement is that if there is even a possible link between an employee’s disability and their behaviour, the cautious approach would be to explore that connection, consider reasonable adjustments, and obtain medical evidence, even if you believed such evidence would not alter the outcome.

Please get in touch if you need support with any HR issues in your organisation.