19 December, 2018
Where there are issues with an employee's performance, employers should always consider whether a disability could be affecting their behaviour or ability to perform.
A disability is defined under the Equality Act 2010 (Act) as 'a physical or mental impairment which has a substantial and long-term negative effect on their ability to carry out normal daily activities'. The Act protects employees from disability discrimination and places a duty on employers to make reasonable adjustments for disabled employees who are placed at a substantial disadvantage because of their disability.
Therefore, when proceeding with any performance management or capability proceedings, it is important for employers to make all reasonable adjustments to support the employee, so as not to put them at a substantial disadvantage. Failure to do so, could give rise to an employment tribunal claim, resulting in significant costs and adverse publicity, which can be particularly detrimental to education and public sector employers.
When assessing whether an adjustment is reasonable, consideration is given to the size and resources of the employer and the practicalities of implementation. Reasonable adjustments could include the following:
The fact that an employee has a disability does not prevent employers from taking steps to manage performance or dismiss for capability, however employers should be satisfied that they have considered all reasonable adjustments before taking such steps and seek legal advice if neccessary.
In a recent publication from ACAS, it was revealed that only one in four employers have a form of adapted performance management for staff with disabilities. ACAS have subsequently issued updated guidance on the best practices for performance managing employees, which can be located here.
If you require advice on managing employees' performance, please contact our Employment & HR department on 01772 220022.