Discounting absences during long-term sickness and disabilityPosted in : Seamus Says - Employment Law Discussion on 2 February 2018
Q: I’m still confused about the crossover between long-term sickness and disability. I read that perceived disability brings protection for employees in Northern Ireland. Must I discount absences, for example, if an employee has a sick or disabled child? Surely, I’m allowed to employ people who can do the job and who don’t take time off, long-term or not?
Seamus: I would have a bit of concern about the back end of that question certainly. I know there’s a part in there in relation to perceived disability, but the first part of the question seems to deal with long-term sickness and disability. There is a difference between long-term sickness and disability. Just because you’re off on long-term sickness does not mean you have a disability.
So, it’s important just to sort of err on the side of caution when it comes to dealing with disability. We have associated disability as a genuine claim that can be brought in the tribunals here. There’s a real concern in relation to someone that maybe has a child or maybe a carer for a parent or carer, in general, that is looking at somebody with a disability and those sort of associated disability aspects that can come into play. It is a tricky question in terms of the fact that it’s all about balance.
An employer probably needs to tread somewhat carefully in terms of where they’re on notice and are aware that maybe an employee has a child with a disability or that they are a carer, and really monitoring the amount of time there that they’re taking. I don’t think there’s an open extended period where the person can simply say or the employee can say, ‘I’m dealing with a disability here. So, I can have carte blanche in terms of what I need.’ There definitely is a balance that has to be achieved between the employer and employee in relation to it.
Scott: In Northern Ireland, that really comes down to reasonable adjustments.
Seamus: That’s correct.
Scott: There is no indirect discrimination protections, if you like, as in the Malcolm case. So, you’re in a situation where somebody’s taking a lot of time off and an employer has to make some kind of an allowance. But there’s no case you can go to and say, ‘I need six weeks here or six months there.’ It’s really a question of proportionality when it comes to disability discrimination.
Seamus: Absolutely. I think that will differ from case to case under the circumstances. Again, it’s that favourite term of mine that the employer just has to be acting reasonably in terms of it. But just getting back to the general issue of long-term sickness, the definition of disability is obviously the physical or mental impairment that has a substantial long-term negative effect on your ability to do normal activities or normal daily activities.
Often, you’ll see within medical reports that we’ll obtain, they’ll say that the doctor believes this falls into the definition of disability or it doesn’t. But they’ll quickly exonerate themselves and say, ‘This isn’t guaranteed. You should obtain a legal opinion.’ It is difficult to try and define that. It really is. There are some cases where it’s clear-cut and there are others where it’s just not. You really probably are dependent on the tribunal looking at it and getting direction.
But the important task is always when you’re dealing with disability to obtain medical evidence, whether it’s from the GP or whether it’s from occupational health and to ascertain what the disability is and what reasonable adjustments need to be made in the workplace in terms of it and taking your leave from it, really, and through discussion and consultation with the employee also.
Related article: How to Manage Sickness Absence - The Do's and Don'ts
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