We have a poorly-performing employee who has been with us for less than a year and has taken 20 days off sick. As a result, his skills and competencies have failed to progress as we expected because he has missed out on training sessions and courses. The situation is complicated by the fact that he has multiple sclerosis (MS), but I am not convinced that his poor performance and absences have been caused by this condition. Is it correct that this employee is protected due to his condition?
From 5 December 2005, MS (and progressive illnesses such as HIV and cancers), will be a qualifying disability under the Disability Discrimination Act 2005 from the time it is diagnosed – it is irrelevant that the condition is dormant. Your employee will not need to prove that his MS has a substantial and long-term effect on his ability to carry out day-to-day activities (such as mobility; manual dexterity; physical co-ordination; continence; ability to lift, carry or otherwise move everyday objects; speech, hearing or eyesight; memory or ability to concentrate, learn or understand; or perception of the risk of physical danger).
Regardless of his disability, you are, however, entitled to address performance issues with him, and your approach throughout should be to separate the two issues of disability and poor performance. You should follow a standard performance review procedure as you are entitled to expect this employee to perform his job to the requisite standard. Remember that this procedure must comply with the statutory disciplinary procedure that has been in place since 1 October 2004, as it is action short of dismissal relating to the employee’s capability.
At the review meeting, you should detail the performance gap by giving specific examples of poor performance and clearly state what the employee did against what he was expected to do.
Alongside this process, you should carry out investigatory enquiries into the employee’s MS by obtaining a report from his GP and any specialist practitioner who is treating him. You should then set up a meeting with the employee to discuss the same. Ask the employee for the reasons for his absences and ask if the company can take measures to reduce them.
You should also carry out a health and safety risk assessment for the employee, consider whether any adjustments to his day-to-day work conditions need to be made, and obtain a comprehensive list of any medication he is currently taking, together with details of any side effects.