Imagine the situation: You have noticed that one of your business’ long-serving employees is struggling to perform.
There have been a few times when they have become very anxious and suffered from panic attacks. In particular, you have seen some significant changes in the way that they interact with their colleagues and customers and the way they approach their work.
What do you do?
The first point to note is that these types of issues should typically be dealt with in accordance with your performance management/capability procedure, which should be in your Employee Handbook.
Since there seems to be a change in behaviour, it is essential that before you start this procedure, you consider whether the performance issues are related to a medical condition which could amount to a disability and, if so, what reasonable adjustments can be made.
If you do just commence your formal performance management procedure without investigating this further, you leave yourself vulnerable to an Employment Tribunal claim.
What is considered a disability?
The Equality Act provides a definition of ‘disability’ and it is often much broader than employers think.
Under the Equality Act, a worker will be considered disabled if they can show that they suffer from a long term (i.e. 12 months or more) physical or mental impairment which has a substantial (i.e. more than trivial) effect on their ability to carry out day-to-day activities.
So, a person will automatically meet the disability definition under the Equality Act 2010 if they have HIV, cancer or multiple sclerosis, but if they suffer from stress, anxiety or depression, they may also be considered disabled for the purposes of the Act.
In this case, if the employee can show that the effect of their anxiety and panic attacks has lasted at least 12 months, is likely to last for at least 12 months, or is likely to last for the rest of their life and it has a significant adverse impact on the way they carry out daily tasks, such as affecting personal relationships with others or being able to concentrate on tasks, they may meet the definition of disabled under the Equality Act.
What is a reasonable adjustment?
Under the Equality Act, there is a legal duty imposed on employers to make reasonable adjustments for disabled employees when they are placed at a substantial disadvantage by
- an employer’s provision, criterion or practice or
- a physical feature of the employer’s premises or
- an employer’s failure to provide an auxiliary aid.
Examples of reasonable adjustments could be adjusting the recruitment process, providing a nearby parking space, installing a ramp for a wheelchair user or changing equipment.
It is up to the employer to cover the cost of the reasonable adjustment. Even if an adjustment does have a hefty price tag, it could still be cost-effective, for example, if you compare the cost of the reasonable adjustment to the costs of recruiting someone new and having to train them.
In this case, if the employee has been off work for some time, you could agree on a phased return to work. This will help get the employee to slowly resume their normal duties.
You could also look at their workload to see if that is affecting their anxiety and the occurrence of panic attacks and consider whether work can be redistributed to others in the team. You could also explore whether there are any other issues that they may be experiencing at work which might be affecting them. By exploring this, you can consider how to resolve these concerns.
What do you do if performance remains an issue?
If you have made all the reasonable adjustments and their performance still does not meet the required standards, you should initiate your performance management/capability procedure, although care would still have to be taken. If the poor performance arises because of something connected to the disability, then it will be necessary to show that the action taken is a proportionate means of achieving a legitimate aim.
As you can see, performance management is a complex area, particularly when medical conditions adversely affect performance, therefore we would urge you to seek legal advice at the earliest opportunity.
To explore this further, contact the British Sandwich & Food to Go Association Advisory Service on 0845 226 8393 or