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It might be, but not always, and an employer may have a justification defence.
This issue arises all the time in practice. Employees and workers who are disabled think that they are shielded from performance management because of their disability. This is incorrect. Employers think they cannot manage employees who they know have an Equality Act disability. This is also incorrect.
So, how does the law work around this? Let's explore…
I have a disability and am being performance managed. Can my employer do this?
Yes, they can. When you are hired to do a job, you must be able to fulfil the essential requirements of the job. If you cannot, your employer can performance manage you. Disability is not a shield to underperformance or to misconduct.
What about reasonable adjustments? Does my employer have to adjust the PIP?
The clue to adjustments is in the name – reasonable. Employers are required by law to make adjustments to the performance management process if there is a disability in play, and the adjustment is reasonable (and possible). Performance management is often referred to as a PIP – performance improvement plan.
There might, in some cases, be a requirement to suspend the PIP for a period if the impacts of the disability are acute. But it does not have to be stalled forever, and in some business-critical roles, employers may be able to argue that the PIP has to take place now, come what may. It all depends on the circumstances.
What might be a reasonable adjustment to a PIP?
The types of adjustment that might be reasonable during a PIP, and depending on the organisation and the role, include:
- Temporarily or permanently removing parts of the job that are particularly difficult for the employee due to the disability (if this is reasonable and someone else can pick up those parts);
- allowing extra time to complete the PIP to remove the pressure if that causes a substantial disadvantage;
- suspending the PIP immediately on the employee's return to work following time off for stress. They are not likely to perform well if immediately put under further stress.
- dispensing with parts of the PIP that the employee is destined to fail because of the disability, if the rest of the PIP will ensure that the job can be done adequately.
The list is endless. If you can propose an adjustment and explain how it alleviates the substantial disadvantage caused specifically to you because of disability, it may be reasonable.
What if I just can't do my job now?
If it is reasonable to make (minor) adjustments and they are possible and practicable, then an employer may have to make them. But this only goes so far: if the impact of your disability on your role is significant, they may not have to do any more, provided they have considered adjustments. Think of an extreme example, such as a lorry driver who goes blind during his employment. There is no adjustment that could possibly alleviate his substantial disadvantage, although in a large organisation, the Archibald v Fife position might be that he could be moved to another role in the organisation. If not, a capability dismissal would be permissible.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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