Two months ago, we recruited a woman who we knew had been out of work for a long time as we wanted to give her a chance. She completed a health declaration form prior to starting work, stating she was on “antidepressants and migraine blockers”. As soon as she hit our four-day absence trigger due to migraines, procedures were started and she was dismissed by letter, shortly thereafter. She has written to say “I was made to feel small, and so stressed that my migraines got even worse. Not only were no reasonable adjustments made for my disability as legally required, but I was subject to the same strict and unbending rules that permanent employees had to work by.” She also said that she should have been referred for an Occupational Health assessment. We would only make such a referral if she was able to get through her probation period.
Probationary periods have little meaning in employment law terms. We are not against them, as properly applied, they provide a valuable structure for reviewing the suitability of staff, and can provide a useful audit trail in countering discrimination claims. In this case, they appear to have misled you into an act of disability discrimination, which is a ‘Day One’ right, i.e. does not require 2 years’ continuous service. Probationary periods do not give you an automatic ‘get out of jail free card’, and Occupational Health is not some sort of employee benefit which has a length of service requirement. Migraines can be seriously physically debilitating, and medication is not always helpful in either warding them off, or quickly stopping them.
You appear to have slavishly followed some sort of absence management policy in a blinkered manner. Assuming that this is not just the action of a rogue Manager who does not like disabled people, then you are undoubtedly facing a claim for failing in your duty to make reasonable adjustments under the Equality Act 2010.
It is not correct to say that you cannot, or will not, apply the same rules to new employees as you would to those that permanent employees have to work by. It is perfectly acceptable to have a requirement for reasonable attendance, but it has to be applied properly. This usually means making reasonable adjustments to absence triggers, and applying careful consideration to ‘special circumstances’, including the “potential impact of disability”, when deciding future employment. It would have been prudent to refer her to an Occupational Health provider.
What you should have done is follow the basic ACAS procedure:
- Invite her to a meeting explaining the problem and likely consequence;
- Hold a meeting, listen to her position and deciding what action to take;
- Offer her an appeal meeting, and is she appeals deal with it thoroughly;
Employers should be alive to the fact that new employees may be disabled regardless of whether they declared this to you prior to appointment. Your approach to disabled employees should be a supportive one. You should not dismiss staff without proper consideration, and taking professional advice.
To avoid disability discrimination claims employers should:
- Review absence management policies, and where you use absence triggers, make some adjustments to those with a disability;
- Take advice from Occupational Health or medical professionals;
- Train Line Managers in how to manage disability related employee absence;
You should treat her letter as an appeal, and arrange a full review hearing, but not until you have asked her to agree to see an Occupational Health provider for a full report. In the circumstances, it would probably be wise to re-instate her and give her a chance to see whether she can sustain regular employment or not.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.