Most employers know that when an employee has a disability, there is a specific requirement to make what are called ‘reasonable adjustments’, to enable the employee to work (or to continue working). These can include initiatives such as additional equipment, changes to hours or working patterns, or changes to duties.
It could be a disability
If someone has such a poor absence rate, or has been off sick for so long, that you are contemplating dismissal, it is fairly likely that the condition is a disability, or could be, even if the employee hasn’t said it is. A tribunal would expect you to make reasonable adjustments and to treat the condition as a disability if you could be reasonably expected to know it is, and to know of the disadvantage the condition was bringing to the employee’s ability to work. And being reasonably expected to know it is a disability doesn’t only arise if you are formally notified that it is.
If you don’t, they’ll stay off sick longer
Assuming the person you are considering adjustments for is currently off sick, or is absent frequently, ultimately if you don’t make adjustments they are asking for, it’s likely they’ll stay off sick longer, or continue with a problematic absence pattern.
If they do come back to work, their performance may be impaired if they have poor health, and have asked for an adjustment that they feel would help them. They are less likely to perform well, which is obviously not good for the business.
Even if you don’t have to make the adjustment, failure to do so may damage your relationship with your employee. They may feel unsupported and resentful, and goodwill may evaporate. That’s clearly not good for performance, either of that individual or also of the team as a whole.
At the more extreme end of possible outcomes in terms of relationship damage, and depending on the nature of the request the employee has made, there is a possibility of a constructive dismissal claim, if the employee feels they cannot work without the change, and that failing to make the change requested constitutes a breach to the implied contractual obligation of trust and confidence.
Dismissing someone with a disability for capability without implementing a reasonable adjustment would clearly be unlawful, and would place the business at great risk.
However, even where there is no disability, failing to make adjustments could place the business at risk in the event you wish to dismiss the employee. A tribunal would need to see that not only was a fair process followed, but that dismissing someone was a reasonable decision to make in the circumstances. And if there was an adjustment you could have made, but decided not to, there is certainly a risk that a tribunal would see dismissal as being premature or unreasonable.
Ultimately, even though there is no specific requirement to implement adjustments for employees without a disability, it is usually sensible to at least consider it. You have to balance the needs of all employees and of the organisation as a whole, but failure to consider requests linked to medical conditions might place the business at risk.
Considering them carefully and implementing where you can will help retain good staff, and will reassure the wider employee population that in the event of health problems of any kind, you are caring and supportive, and will seek to enable them to remain at work where possible.
If you need any further advice on ‘reasonable adjustments’, do get in touch.