Managing disability related sickness absence is one of the more sensitive challenges you can face as an employer. It requires careful judgement, genuine consideration for the employee, and a clear understanding of your legal obligations.
Where an employee's time off is connected to a disability, you cannot simply apply your usual absence policy without modification. Doing so risks claims of disability discrimination, failure to make reasonable adjustments and unfair dismissal.
This guide sets out what you need to know about managing disability related absence and how to handle it in a way that is both legally compliant and fair to everyone involved.
Why disability related absence is different
Under the Equality Act 2010, an employee is disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Disability related sickness absence can arise from a wide range of causes, including:
- flare-ups of symptoms or a long-term condition
- hospital, GP or therapy appointments
- fatigue, pain or side effects of medication
- mental health-related absence
- recovery time following treatment
- absence caused by a failure to make workplace adjustments
A standard absence policy will not always distinguish between general sickness and disability related absence. Applying the same trigger points and warnings to all employees without adjustment creates significant legal risk, and can leave a vulnerable employee feeling unsupported at a difficult time.
The legal risks for employers
Getting this wrong can be costly, both financially and in terms of your relationship with the employee. There are three main types of claim that can arise where disability related absence is mishandled.
Discrimination arising from disability
Under section 15 of the Equality Act 2010, it is unlawful to treat an employee unfavourably because of something arising in consequence of their disability, unless the treatment can be objectively justified. Absence is capable of being "something arising in consequence of" a disability. Disciplining, warning or dismissing an employee for disability related absence may therefore amount to discrimination unless the employer can demonstrate proportionality.
Failure to make reasonable adjustments
An absence management policy, including its trigger points and escalation stages, is a provision, criterion or practice. If applying that policy places a disabled employee at a substantial disadvantage, the employer is required to make reasonable adjustments.
Unfair dismissal
Where an employee has sufficient qualifying service, dismissal for absence may also give rise to an unfair dismissal claim. The employer must show a fair reason (usually capability) and that dismissal was reasonable in all the circumstances.
Adjusting absence triggers
Adjusting absence triggers is one of the most common reasonable adjustments in disability related absence cases. Standard trigger points, such as a Bradford Factor score, three absences in six months or ten days in a rolling year, may place a disabled employee at a substantial disadvantage if applied without modification.
Reasonable adjustments to consider include:
- discounting some or all disability related absence from trigger calculations
- increasing the trigger threshold
- treating disability related absence separately from unrelated sickness absence
- allowing paid or unpaid time off for medical appointments
- extending review periods
- agreeing an individual attendance plan
Adjusting triggers reduces your legal risk but does not provide a complete defence. If formal action is taken, you will still need to show that the treatment was a proportionate means of achieving a legitimate aim, such as maintaining adequate attendance, operational efficiency or service delivery.
Capability, not disciplinary
Where absence is caused by ill health or disability, the correct framework is almost always a capability or medical capability process, not a disciplinary one. It is important to approach this process with sensitivity and a genuine willingness to support the employee. Sickness absence is not misconduct.
A fair capability process will include:
- consulting with the employee throughout
- obtaining up-to-date medical evidence
- considering whether the employee is disabled under the Equality Act 2010
- exploring all reasonable adjustments
- reviewing the operational impact
- considering alternatives to dismissal, including redeployment
- making a proportionate decision and allowing an appeal
Occupational health evidence is often central to this process. A referral can assist with establishing whether the employee is disabled, the likely prognosis, recommended adjustments and fitness to work. The employer remains responsible for the final decision; occupational health advises but does not determine whether employment can continue.
When can dismissal be justified?
Dismissal for disability related absence is not automatically discriminatory or unfair, but it must always be a genuine last resort. We understand that reaching this stage is rarely straightforward, and it is important that you are able to demonstrate that every reasonable step has been taken. Before moving towards dismissal, you should be able to show that:
- appropriate medical evidence has been obtained
- the employee has been consulted and given a fair opportunity to provide input
- reasonable adjustments have been properly considered and, where reasonable, tried
- there is no suitable alternative role
- the absence level remains unsustainable, and the business impact is significant
Vague statements such as "the team is frustrated" or "the absence is inconvenient" will not be sufficient. You should evidence the operational impact with specific examples, such as missed deadlines, rota gaps, increased overtime costs or disruption to service delivery.
Common mistakes to avoid
Even well-intentioned employers can make mistakes in this area. The most common errors when managing disability related sickness absence include:
- treating disability related absence as misconduct
- applying absence triggers automatically without considering disability
- failing to obtain or act on medical evidence
- assuming a formal diagnosis is required before the Equality Act 2010 applies
- issuing warnings without first exploring reasonable adjustments
- dismissing an employee while adjustments are still being explored
- failing to consider redeployment as an alternative
The correct approach is more nuanced than either ignoring disability related absence entirely or managing it in the same way as ordinary sickness. Attendance can and should be managed, but with appropriate modification, evidence, consultation and proportionality. If you are unsure how to proceed, taking early advice can help you avoid costly mistakes.
Speak to our employment law team
Disability related absence is one of the more complex areas of employment law, and we know that navigating it can feel daunting. Whether you are an employer trying to manage absence fairly and lawfully, or an employee concerned about how your disability related sickness absence is being handled, we are here to help.
Please contact our employment law team for advice tailored to your situation.
FAQs
What counts as disability related sickness absence?
Disability related sickness absence is time off that arises because of a disability or a condition linked to it. That can include flare-ups, treatment, recovery time, medication side effects or absence caused by a lack of suitable adjustments.
Can an employer apply normal absence triggers to a disabled employee?
Not automatically. If standard trigger points place a disabled employee at a disadvantage, the employer should consider reasonable adjustments first. That may mean discounting some absence, extending review periods or using an individual attendance plan.
Is disability related absence misconduct?
Usually not. Absence caused by ill health or disability is generally handled through a capability or sickness absence process, not a disciplinary one, unless there is dishonesty, unauthorised absence or a separate conduct issue.
Can an employee be dismissed for disability related absence?
Yes, but only as a last resort and only after a fair process. The employer should have medical evidence, consider reasonable adjustments, review the business impact and check whether there is a suitable alternative role before dismissal.
Does the Equality Act 2010 protect employees without a formal diagnosis?
It can do. A formal diagnosis is not always required. What matters is whether the employee meets the legal definition of disability and whether the employer knew, or should reasonably have known, about the condition.
