Can an employer use its absence management procedure in relation to disability-related absence if this could result in disciplinary action?

Disciplinary action against an employee for absences that are a consequence of a disability could constitute discrimination arising from disability under s.15 of the Equality Act 2010. An employer discriminates against disabled employees under s.15 if, because of something arising from their disability, it treats them unfavourably, and cannot show that the treatment is justified in the circumstances.

If persistent or long-term absence affects the employee's ability to carry out the job, the employer should address this as a capability issue, not a disciplinary issue. The absence management procedure should allow for the consideration of any reasonable adjustments that the employer could make to enable the employee to return to work or to avoid further absences.

The duty to make reasonable adjustments also applies to the application of the absence management procedure itself. It may be reasonable to adjust the amount of absence that will trigger the procedure, or to discount disability-related absence from the process. This would depend on what is reasonable in the particular circumstances.

It may be justified to dismiss an employee if their absence levels mean that they are unable to perform the role and the employer has explored all possible reasonable adjustments. Again, this will depend on the individual circumstances.

An employer might be justified in taking disciplinary action in connection with disability-related absence if, for example, the employee did not follow the absence reporting procedure (without good reason), or if evidence suggests that their absence on a particular occasion may not have been for the reason given.