Weekly dilemma…

We have an employee with three years’ service whose attendance has always been an issue. In the past year, he has been off sick for 30 work days. This has an impact on the other staff who have to cover his work. However, he has diabetes and says this makes him susceptible to illness. Can we manage his attendance or are we potentially discriminating against him?

Diabetes is a disability under the Disability Discrimination Act 1995 as it is a physical condition with a substantial, long-term adverse effect on an individual’s ability to carry out normal day-to-day activities.

The purpose of the disability discrimination legislation is to enable disabled employees to carry out the role they are engaged to do. The duty of employers to make reasonable adjustments should eliminate disadvantages in the workplace to the disabled employee. The law is not to prolong or maintain employment regardless of ability or capacity.

To manage this situation, you should:

  • Consider whether this employee’s absences are caused by his work conditions and whether reasonable adjustments are possible. He should have regular breaks to take medication and regulate his blood sugar.
  • Ensure you obtain current medical reports on his condition and are able to judge what adjustments are reasonable.
  • Consider reviewing and adjusting trigger points for action under an attendance management policy (eg, raise the trigger for a formal warning from eight to 10 days).
  • Decide what absence level is unsustainable and the business reasons for this.
  • Follow a full dismissals procedure involving warnings and meetings in accordance with the statutory disciplinary and dismissal procedures if you wish to terminate his employment.

If he is unable to carry out his role and maintain acceptable attendance levels despite reasonable adjustments, he is likely to be incapacitated. This is a potentially fair reason for termination.

Sara Khoja, solicitor, Field Fisher Waterhouse

Each week we ask the experts to answer your legal dilemmas. If you have a legal question or dilemma, e-mail dawn.spalding@rbi.co.uk

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