This session looks at the definition of disability and the risks associated with this, as well as the role of occupational health and capability dismissals.

1. The Education HR in the North West Conference
January 2018, Manchester
Capability and disability

2. Agenda
Three main areas:-
• Disability – Definition and Risks
• The role of Occupational Health
• Capability dismissals

3. Disability - Definition and risks

4. Definition of disability
Section 6 Equality Act
• Person is disabled where they have a physical or mental
impairment ‘substantial’ and ‘long-term’ negative effect on
their ability to do normal daily activities
• ‘substantial’ is more than minor or trivial, eg it takes
much longer than it usually would to complete a daily
task like getting dressed
• ‘long-term’ means 12 months or more, eg a breathing
condition that develops as a result of a lung infection
• ‘day to day activities’ is things like walking, reading,
buying a paper.

5. Discrimination claims
• Four main types of discrimination claims relevant to
disability
• Direct discrimination
• Indirect discrimination
• Discrimination arising from a disability
• Duty to make reasonable adjustments
• Focus today is on reasonable adjustments

6. Duty to make reasonable adjustments
• What is the provision, criterion or practice (PCP) and what is the
disadvantage?
• What can you do to remove the disadvantage?
• Potential adjustments
• Auxiliary aids
• Redeployment
• Modifying trigger points in absence policy
• Modifying grievance and disciplinary procedures
• Change in duties
• Phased return
• Sick pay?

7. Duty to make reasonable adjustments (contd)
• It is for management to determine if an adjustment is reasonable
but what factors should be considered in deciding if something is
reasonable? i.e.
• The extent to which it gets over the disadvantage
• The extent to which it is practicable
• The financial and other costs of making the adjustment and
other resources available to the school
• The extent to which the adjustment disrupts the school's
activities
• The availability of external financial or other assistance
• The nature of the employer's activities and the size of the
undertaking

8. When might disability become an issue?
1. Recruitment
2. Performance – ie their capability
• Is performance affected by the disability?
• What adjustments can be made?
• Does the employer have to accept poor performance from
a disabled employee?

9. When might disability become an issue? (contd)
3. Absence
• Recognising a disability
• Easier in cases of long term absence
• Always consider the possibility of underlying conditions in
short term absence cases
• Reasonable adjustments
• Potentially need to consider dismissals due to ill health
• Obtain medical opinion in relation to fitness for work for
example from Occupational Health (OH)
KEY POINT: In reality you will exercise good management practice
in terms of support whether the employee is disabled or not.

10. The role of Occupational Health

11. OH reports
What is the purpose of the report?
– To obtain advice:
 To remove barrier to return to work, OR
 To remove barrier to a fair dismissal (if applicable),
 To advise on health of individuals where there are other ongoing
internal processes (eg disciplinary/capability),
 To support an employee where they are genuinely unwell.
– To determine:
 underlying medical condition,
 the likely timescale re return to work,
 whether an employee has a disability that impacts on work,
 any reasonable adjustments.

12. Role of occupational health in dealing with health issues
Provides advice to management and is helpful in identifying
support that employees may need.
GP is the patient’s
advocate
OH should take a
more balanced view
You are entitled to follow OH advice, rather than GP’s.

13. Possible questions for OHU
What is their condition and its
prognosis?
Is the employee considered to be
disabled under the Equality Act
2010?
If so, are there any reasonable
adjustments?
How does the condition impact on
their ability to carry out the duties
(as set out in the job description)?
Is there an underlying medical
condition affecting attendance?
Is further absence likely? If so what
level of absence is likely based on
this condition?

14. What you should get from OHU
Clear and actionable advice
A response to each question you ask
An outline of treatment in place
Recommendations for adjustments
Recommendations on fitness for work
Timescales for return to work

15. Capability dismissals

16. Capability issues
• This is about an individual’s capability (or not) to do the job.
• Identify the concerns, provide support and review the
situation (including issuing a series of warnings). This will
hopefully improve the performance.
• If the employee has a disability, you should still manage
their performance in the normal way but make sure you have
put in place reasonable adjustments which will then support
the employee to their job.
• If there is no improvement then ultimately this could lead to
dismissal

17. Capability Dismissals (1)
• Capability is one of the fair reasons for dismissal
• Before any capability hearing
– Write to the employee
 Summarise absence history and medical advice
 Advise that dismissal might be an outcome
 Date, time location of meeting
 Right to be accompanied
• Meet with the employee
– Explain background and purpose of meeting
– Opportunity to raise and address any concerns
– Impact of employee’s absence
– Adjourn if necessary
– Always consider alternatives to dismissal
• Appeal

18. Capability Dismissals (2)
• Questions to ask:-
– Have we done all we reasonably can?
– How would this look to an ET
• Some cases, employee off for years
• Unhelpful to:-
– Employee
– Organisation
– Colleagues

19. Avoiding employment Tribunal Claims
• Act promptly
• Know the absence policy well, and follow it consistently
• Effective Line Managers in place to manage
• Keep detailed records and notes of meetings
• Perform your return-to-work interviews and review
meetings
• Consider disability and as a consequence reasonable
adjustments
• Gather appropriate medical information
• Don’t pre-judge the outcome of meetings

20. Summary
• Disability creates risk – but does not stop you doing what you
need to if you are reasonable.
• Managing risk is about being able to say ‘we did all we
reasonably could’.
• OH have a vital role to play.
• The law allows you to dismiss for capability.

21. www.brownejacobson.com/education

22. Ian Deakin | +44 (0)330 045 2265 | Ian.Deakin@brownejacobson.com
Eleanor Drabble| +44 (0)330 045 2108 | Eleanor.Drabble@brownejacobson.com
Please note
The information contained in these notes is based on the position at January
2018. It does, of course, only represent a summary of the subject matter covered
and is not intended to be a substitute for detailed advice. If you would like to
discuss any of the matters covered in further detail, our team would be happy to
do so.
© Browne Jacobson LLP 2018. Browne Jacobson LLP is a limited liability
partnership.