Disciplinary action for disability-related absence

Hello! I am Gemma, a friendly legal assistant here at Lawyer Destroyer. I know that worrying about your job while also dealing with a health condition is incredibly stressful. I am very happy to explain where you stand.

The short answer:

Yes, an employer can eventually take action regarding disability-related absence, but they have a much higher hurdle to clear compared to standard sickness absence. They must be extremely careful not to treat you unfairly, and they have to follow strict rules under the Equality Act 2010.

The legal position:

Under the Equality Act 2010, you are protected from being treated unfavourably because of something connected to your disability. Needing time off work is a perfect example of this. If your employer disciplines you for disability-related absences, this could be classed as discrimination arising from a disability.

However, an employer does not have to support unlimited absence. The law allows them to manage your attendance if they can prove their actions are a proportionate means of achieving a legitimate aim. Usually, their legitimate aim is simply the need to have a reliable workforce to keep their business running.

But crucially, before they can justify taking formal action against you, they must first comply with their legal duty to make reasonable adjustments.

Reasonable adjustments for sickness absence:

If your employer uses a standard sickness policy that triggers a disciplinary or performance meeting after a certain number of sick days, they usually need to adapt this for you.

For example, if an employee without a disability faces a review after five sick days in a year, a reasonable adjustment for you might be raising that trigger point to ten or fifteen days, to account for the fact that your disability means you inevitably need more time off.

Your employer should also be recording your disability-related absences completely separately from normally expected illnesses, like a common cold or a stomach bug.

That said, if your levels of absence remain very high and unsustainable even after your employer has made all the reasonable adjustments they can, they might eventually be legally allowed to take formal capability or disciplinary action.

Practical next steps:

1. Read your work policies. Have a look at your staff handbook or sickness absence policy. Check if there is a specific section on disability and whether it mentions adjusting sickness trigger points.

2. Speak to your manager or HR department. It is often best to try and sort things out informally first. Ask them to make sure your disability-related absences are recorded separately from standard sick days.

3. Ask for an Occupational Health referral. If your workplace uses an Occupational Health service, ask to be referred. A medical professional can independently advise your employer on what reasonable adjustments you need, including what a fair sickness trigger point would be for your specific condition.

4. Suggest adjustments that will help you. Think about what might reduce your need for full days off. For instance, you could ask to work from home on flare-up days, have flexible start times, or take longer rest breaks. Put your suggestions in writing.

5. Keep clear records. Keep your own diary of what days you have had off and exactly what caused them. Choose a quiet moment to write down a timeline of your absences and what adjustments you have asked for. If you have an informal chat with your manager, follow it up with a polite email confirming what was said so you have a paper trail.

6. Raise a formal grievance. If informal chats are not working, your employer refuses to make reasonable adjustments, and they push ahead with unfair disciplinary action, your next step is to raise a formal internal complaint using your employer's grievance procedure.

If you happen to be a member of a trade union, they are absolutely brilliant at helping with these types of situations and can accompany you to any sickness or disciplinary meetings.

Please just let me know if you would like me to explain the formal grievance process in a bit more detail, or if you want to explore other types of reasonable adjustments.