We receive many enquiries from disabled employees asking for help when they have been accused of misconduct by their employer. As a disabled person, defending yourself through a disciplinary process can feel daunting. If you are facing disciplinary action and you are a disabled employee, there are things you can and should ask for to make sure you are not disadvantaged through the disciplinary process.
The Right To Request Reasonable Adjustments
If you are a disabled person, the Equality Act 2010 imposes a legal duty on your employer to make reasonable adjustments in order to mitigate any substantial disadvantage you suffer because of your disability. Breaking this down in the context of disciplinary action:
Are You A Disabled Person?
The employer’s duty only applies if you are a disabled person. The Equality Act 2010 states that a disability is a “physical or mental impairment which has a substantial and long term adverse effect on [the disabled person’s] ability to carry out normal day to day activities”.
More information and detail about who would be a disabled employee for the purposes of the Equality Act 2010 is available on our website at https://lincslaw.co.uk/blog/are-you-a-disabled-employee/
Does Your Employer Know That You Are A Disabled Person?
The employers’ duty only applies if they are aware (or should be aware) that you are a disabled person. The Employment Tribunal see many, many arguments about what an employer did or did not know – an employee’s claim or request for reasonable adjustments being wholly dependant on the answer.
I understand that as a disabled person you may be reluctant to share the details of your disability. However, in the context of requesting reasonable adjustments through a disciplinary process, it is important to remove all doubt that your employer knows about your disability.
Make sure you tell your employer that you are disabled. Ideally, do so in writing so that you can prove what your employer knew and when. That way you will have clear evidence if your employer’s knowledge if your disability becomes a matter of dispute in the future.
How Will You Be Substantially Disadvantaged By The Disciplinary Process?
Obviously, this is dependent on your particular circumstances. Essentially, you need to explain why, due to your disability, you are substantially disadvantaged when compared to others who do not have your condition.
For example:
- Do you have a condition that affects your memory? If you are required to recall information “on the spot” in a disciplinary interview or hearing, will this be difficult for you?
- Do the misconduct allegations have some connection with your disability? Is there a target you could not meet because of your disability or a policy you could not comply with due to your disability?
- Do you have a condition which affects the way you can receive and understand information? Will you find it difficult to understand and respond to allegations in a disciplinary interview?
Would Changes To The Disciplinary Process Mitigate These Substantial Disadvantages?
You might think the answer to the above question is obvious, but it is important to consider.
To assist, take the example of a disabled employee who has a condition which affects their memory and recall. Any part of the disciplinary process which requires them to immediately recall and respond to allegations will put them at substantial disadvantage. This could be a suspension meeting, a disciplinary investigation meeting, the disciplinary hearing itself etc. Indeed, any stage of the process which requires immediate or instant recall and response
Once you have established that the usual disciplinary process would cause you to be disadvantaged, the next step is to suggest reasonable adjustments which would avoid or mitigate that disadvantage. For our example above, reasonable adjustments could be made to:
- Undertake the investigation without a meeting or interview – for example, written questions giving the employee time to respond;
- If there does have to be a meeting or interview, providing full information about the allegations well in advance;
- If there does have to be a meeting or interview, providing any questions which will be asked well in advance.
The above are just examples, depending on your circumstances the reasonable adjustments you require are likely to be different.
Would Adjustments To The Disciplinary Process Be Reasonable?
Again, this would be specific to you and your employer’s circumstances. What is reasonable depends upon what is requested and how easy (or otherwise) it is for the employer to provide bearing in mind their size, resources etc.
Most adjustments to interviews and hearings (additional time, information in advance, questions in writing etc) are likely to have little impact on the employer and be easily provided. Accordingly, it would be difficult to suggest that they were unreasonable.
Making A Request For Reasonable Adjustments To The Disciplinary Process
It is important that when you make a request for reasonable adjustments to the disciplinary process, you are clear about your disability and the changes you are seeking. We have a draft request below which may assist you.
Dear [Employer/Manager/HR Name],
Subject: Reasonable Adjustment To Disciplinary Process
I am writing to formally request reasonable adjustments to the disciplinary process due to my disability as per the Equality Act 2010.
My disability is [explain the condition you have]. Due to my disability, I have the following difficulties [memory difficulties, recall problems, etc].
The disciplinary process requires that I [attend an investigation meeting, disciplinary meeting etc]. As you will appreciate, such requirements present barriers for me when compared to my colleagues who do not have my disability. I believe that the reasonable adjustments below would assist to prevent those barriers impacting on my ability to defend myself through the disciplinary process:
- List requested adjustments – eg information provided in writing etc .
I would be happy to provide further details, including medical documentation, to support my request.
Yours sincerely,
What Do You Do If Your Request For Reasonable Adjustments To The Disciplinary Process Is Refused?
The employer has a legal duty to make reasonable adjustments for a disabled employee. Therefore, in the event they breach that duty you may be able to pursue a claim at the Employment Tribunal for disability discrimination. If you are dismissed at the end of the disciplinary process, the failure to make reasonable adjustments may mean you also have a claim for unfair dismissal. More information about Employment Tribunal claims is available on our website at https://lincslaw.co.uk/services/employees/employment-tribunal-claims/
Lincs Law Employment Solicitors Can Help You
If you need help requesting reasonable adjustments in a disciplinary process, or if your request has been refused by your employer, call us on 01522 440512 for a free, no obligation enquiry. Alternatively, book yourself a call on our website. We would be very happy to help.
Sally Hubbard
Managing Director, Specialist Employment Solicitor
Lincs Law Employment Solicitor
Tags: disability disabled person misconduct allegations disciplinary disability disciplinary reasonable adjustments reasonable adjustments disciplinary procedure sally hubbard sally hubbard solicitor
