What do you do if an employee raises something that might be a disability during a disciplinary hearing?

If an employee is accused of misconduct of some kind, their defence may well be that a core part of their condition was behind their behaviour.  This is classic section 15 Equality Act 2010 territory.  We have seen a string of cases where an employee is found to have been unfairly dismissed by reason of the employer ignoring a disability or failing to obtain medical advice as to whether the disability does contribute to a person’s behaviour in the manner alleged.

The most recent example of this was a bank manager, who had diabetes that was uncontrolled.  Changes had happened with the recent closure of other branches and his branch became much busier, and it became a lot more difficult to take breaks and maintain his blood sugar levels. His dismissal related to his failure to follow proper security and closing procedures at the branch, having been found to leave the keys in the door on multiple occasions and even locking a customer in after closing time on one occasion!  When the employee had been diagnosed with diabetes 2 years into his employment, his GP had advised the employer that it was important for him to avoid drops and spikes in his blood glucose levels.  His diabetes was deteriorating because of work related stress, poor upkeep of diet and the demands of his job.  It seems the employer (HBOS) did nothing to assist him in this regard.

The Employment Tribunal concluded that the symptoms that he experienced when he wasn’t controlling his diabetes of feeling shaky, weak, hungry, lethargic and experiencing confusion pointed to a substantial adverse effect on his ability to carry out normal day to day activities such as attending work and concentrating.

The employee brought claims for Unfair Dismissal, Wrongful Dismissal and Disability Discrimination, and the Employment Tribunal ruled in his favour on the Disability Discrimination. It found there was still a 10% chance that he would have been dismissed following a fair procedure, if the employer had taken into account his diabetes and that his actions had contributed to his dismissal at the level of 60% thus compensation for unfair dismissal was reduced, but even so, the employer’s liability was for £49,457.

If somebody raises disability as an issue, you need to pause the disciplinary procedure and adjourn, in order to obtain further advice usually from a medical expert, before you reach any conclusions about the employee being at fault.