Where an employee is accused of an act of misconduct in the workplace, the role of HR is usually clear and (fairly) straightforward: get an investigation off the ground, consider whether suspension is necessary, and, if required following investigation, put the wheels in motion for a disciplinary hearing to be held. As long as you are following the Acas Code of Practice you can’t, seemingly, go far wrong. But what should HR do when an employee, whilst admitting the act of misconduct in question, alleges that it was caused by a disability? Here are our top tips:
- Do not ignore the employee’s health disclosure. Once it has been made, you are on notice that the employee might be a disabled person. Disabled employees have additional legal protections under the Equality Act 2010 which may impact not only the way the allegation is viewed but also the way the disciplinary process is conducted.
- Consider whether any adjustments need to be made to the investigation or disciplinary process itself as a result of the employee’s potential disability. Employers are under a duty to make reasonable adjustments to remove any substantial disadvantage that an employee might be placed at in the workplace by reason of their disability. In a disciplinary context this might involve, for example, making adjustment to the way in which information is provided, offering alternative venues for meetings (or virtual meetings if appropriate) or relaxing rules on companions. Ask the employee what they might reasonably need. If you want further guidance on the matter, consider involving occupational health.
- Consider whether the employee’s conduct is linked to their disability. If an employee’s misconduct stems from a disability, any disciplinary action may amount to discrimination arising from disability – unless the employer can justify the action as a proportionate means of achieving a legitimate aim.This issue was considered in Hayes v Scania, where an employee with ADHD was dismissed for sending offensive messages after his lunch was tampered with. Although his disability influenced his behaviour, the tribunal found he remained responsible for his actions and the employer’s response was proportionate.
Similarly, in Duncan v Fujitsu Services, an employee with ADHD and Autism Spectrum Disorder was dismissed for highly offensive messages sent at work. He argued his conduct was linked to his disabilities but failed to engage with the disciplinary process. The EAT found the dismissal was justified to protect staff from harassment and maintain a safe workplace. Important factors included that the behaviour had occurred during work time, that the language used was very strong, foul and abusive and that the Claimant had not provided any assurance that the remarks would not be repeated.
These cases show that employers can take action in response to disability-related misconduct, provided that the decision can be objectively justified. If faced with a similar situation, HR should:
- take account of any medical evidence produced;
- consider the extent to which the conduct arose from a disability;
- consider the legitimate aim you are pursuing by taking this action – and clearly document it; and
- consider whether the action you are proposing to take is proportionate: could a less draconian measure still achieve the aim? Again, make sure that the disciplinary officer documents their conclusion and reasoning.
- Remember to check-in with the employee once the disciplinary process has ended. If the outcome involves them remaining in employment then there may be wider work to do to respond to their health disclosure – reasonable adjustments and assistance might need to be considered. If the outcome is dismissal then, particularly if the disclosed disability relates in some way to mental health, consider providing support and assistance – including potentially signposting external organisations which may be able to assist the dismissed employee.