When dealing with employee absence, it is very important to show empathy for the employee’s circumstances, as well as following an attendance management policy, effectively exploring the possibility of making reasonable adjustments to allow the employee to return to their role, or one which is similar.
When dealing with absence, whether it be short term, or long term, it is important to offer support the employee to, not only gain an understanding of their needs, but to gauge what changes could be made to allow them to return to work, as failure to do so may result in unfair dismissal claims being made by the employee.
Under the Equality Act 2010 a person is disabled if they have a physical or mental impairment which has a substantially adverse and long-term effect on their ability to carry out normal day-to-day activities. Employers must make reasonable adjustments to ensure workers with disabilities, are not disadvantaged and take steps to remove, reduce or prevent obstacles a disabled worker or job applicant faces.
In terms of reasonable adjustments, what is deemed reasonable will depend on the size and nature of the organisation, however, many adjustments will be simple and inexpensive, such as
- a special chair because of back problems
- a special keyboard because of arthritis
- a ramp for a wheelchair user
- changing working hours or patterns of work
- a phased return after sick leave
- a designated car park space
- modifying performance targets.
Employers should remember the aim of the adjustment is to take away the disadvantage for the disabled person and enable them to carry out their job/duties.
When a workplace feature or practice puts a worker or job applicant with a disability at a disadvantage, the employer has a duty under the Equality Act 2010 to see what ‘reasonable adjustments’ can be made if:
- it becomes aware of their disability
- it could reasonably be expected to know a worker has a disability
- the worker asks for adjustments to be made
- the worker is having difficulty with any part of their job
- either the worker’s sickness record, or delay in returning to work, is linked to their disability.
The employer should hold a meeting with the worker to discuss what can be done to help them. For example, this could be as simple as a change in working hours.
One particular example of the importance of this was a case involving FlyBe, where it was ruled that a pilot had been unfairly dismissed, due to developing a fear of flying, after his employer failed to follow the correct procedure, including offering reasonable adjustments.
First officer Matthew Guest had been working for Flybe for almost a decade when he suddenly became anxious and suffered panic attacks, after being promoted to longer flights, and he was moved onto the Flybe’s Ejets, which are based at Birmingham West Midlands Airport. He was delighted by the opportunity but, during a flight to Florence he suddenly became sick and dizzy. This was followed by a feeling of dread, and a terrible feeling in the pit of his stomach whenever he drove to the airport, which led to him calling in sick and returning home.
Over the following months Mr Guest, who had a toddler and a three-month-old baby, continued to suffer from anxiety and his GP wrote to his bosses saying he had “developed an increasing phobia and anxiety about long-distance flights and being trapped on the aeroplane”, and his medical certificate, was temporarily suspended.
Over the next two months, Mr Guest underwent cognitive behavioural therapy sessions and his medical certificate was reinstated by the CAA, however he continued to struggle and was eventually signed off with anxiety. He then began a second period of absence during which he attended further CBT sessions, hypnotherapy and acupuncture and was prescribed an antidepressant permissible for pilots.
Mr Guest returned to work again and, after one flight, he seemed fine but subsequent flights were more mixed. Things then came to a when the he learned that he was due to undertake a four hour flight to Kefalonia in Greece. After raising his fears, he was told by the head of pilot management, to pass the time by reading a book or complete a crossword puzzle, during the cruise phase of the flight. .
Mr Guest agreed to take on the flight but called in sick the next day and, after which, his roster was cleared completely.
The company then sacked him saying that they remained concerned regarding Mr Guest’s fitness to fly safely, due to the uncertainly of his condition, they were unable to accept this rick, having only previously offered him a ground based role as Flight Safety Support Officer, but he was told that there would be no possibility of returning to flying if this was accepted.
The judge ruled that “It is a basic principle of natural justice and of fairness that an employee should have the chance to address the relevant decision-maker. Here, the claimant had no such opportunity.”
Due to this, the judge ruled that this was unfair dismissal, also adding that Mr Guest could have returned to flying the aircraft he had flown safely and without difficulty for years, or he could’ve been allowed to fly for a time with a supernumerary pilot.
Upholding his claim, he said that, had Flybe followed the correct procedure, there was a two thirds chance they would have sacked him fairly.
The father of two requested to be re-employed by the budget airline as his remedy for unfair dismissal.
If we can help you with this or any other HR issue, please do not hesitate to contact a
member of our HR Team at HR Services Scotland Ltd on 0800 069 8970.