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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Last year I took a severe hypo whilst driving at a

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Last year I took a severe hypo whilst driving at a weekend. I lost my license for 12 months. This affected my lifestyle and potentially my performance at work. I have received a letter from my employer stating my performance at work is poor and I must immediately improve or formal disciplinary will be taken. My work has helped me get a lift to and from work since losing my license. I am wondering if my work should have taken more notice and provided more support following my accident last year. I have worked for the company for nearly 10 years and never had a complaint. I have suggested to them that maybe my diabetes has played a part in my poor performance although I feel I have not performed badly. I also feel I am being bullied with this now and discriminated.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Has the employer provided evidence or examples of why they think your performance is poor?

Customer: They have given several examples. To be honest it sounds like they are trying to get rid of me. I have had appraisals yearly with no problems. A new director took over recently and he has written this letter to me. I have checked the DDA and I feel they should have been more supportive. Possibly my performance has dropped due to the incident
Ben Jones :

ok let me get my response ready please

Customer: Ok thank you
Ben Jones :

An employee's poor performance is a potentiality fair reason for dismissal under the Employment Rights Act 1996, as it would amount to lack of capability. This should be assessed by reference to an employee's "skill, aptitude, health or any other physical or mental quality" and must relate to the work that they were employed to do.

In order for a dismissal for poor performance to be fair, an employee must be warned that they need to improve, be given reasonable targets for improvement within a realistic timescale and be offered appropriate training and/or support during the monitoring period.

Generally, the reasonableness of such dismissals would be measured against the following criteria:

  • Did the employer have reasonable belief in the employee's incompetence;

  • Was the situation investigated and was the employee given the opportunity to voice their side of the story;

  • Was the employee aware of what was required of them in terms of satisfactory performance;

  • Were steps taken to minimise the risk of poor performance through training, supervision, etc;

  • Was a proper appraisal conducted and was the problem identified in a timely manner;

  • Was the employee told of the consequences of failing to improve and were they actually given the chance to improve their performance;

  • Did the employer consider offering alternative employment.

The above are just examples and what a tribunal would generally look for when deciding the reasonableness of a dismissal. If there is a genuine belief or evidence that the employer has acted in a rather heavy-handed manner and not satisfied at least some of the above requirements, the dismissal could be challenged.

Another issue is your condition. It is not the DDA that applies any longer, this was replaced by the Equality Act 2010 and you will have to show that you were disabled. In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘disability’.

The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”.

I will break this definition down:

  • Physical or mental impairment – this can include nearly any medical condition;

  • Substantial effect – the effect must be more than minor or trivial;

  • Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;

  • Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.)

If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees.

What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances. Below are some examples:

  • making adjustments to work premises;

  • allocating some of the employee’s duties to others;

  • transferring the employee to fill an existing suitable vacancy;

  • altering the employee’s hours of work;

  • allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;

  • acquiring or modifying specialist equipment;

  • providing supervision or other support.

If someone who is disabled is being treated unfavourably because of their disability or their employer has failed to make reasonable adjustments it would potentially amount to disability discrimination. The first step would be to raise a formal grievance. The next step would be to consider whether a claim for disability discrimination should be made in an employment tribunal (the time limit for claiming is only 3 months from the date of the alleged discriminatory act taking place).

If this was to result in a dismissal, the first step is to appeal directly to the employer within the allocated time for an internal appeal. After that the only viable option is to consider a claim for unfair dismissal in an employment tribunal, subject to having at least 2 years' continuous service. There is a strict time limit of 3 months from the date of dismissal to issue such a claim.

I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you

Customer: Thanks for your response.
Customer: Thanks for your response. I am wondering if my diabetes has potentially caused any poor performance? There has been no investigation to date. I have just received this improvement notice but it does threaten me with formal disciplinary if I do not immediately improve. There has been no offer to help or support or training. I understood that diabetes comes under disability? And if so the company should have supported me following the ar incident with my diabetes last year. Should they have put a arm round me asking why my performance has dropped, asking is your diabetes ok? I feel they have missed these steps and been heavy handed. I am wondering if I should formally respond to this letter suggesting the aforementioned? The points the employer has raised are generally minor but made out to be a lot worse. It is a construction company that I work for. Thank you
Ben Jones :

I cannot say if your diabetes has caused the poor performance, this may be for a medical professional to comment on as they will know better how the condition can affect you. Ad to whether it amounts to a disability, it does not do so automatically - as mentioned you need to meet the criteria I set out above. But you should certainly raise these issues with them rather than just sitting back and letting them take this forward as they had initially planned

Customer: Ok thanks Ben. I just believe they should have been more supportive. This company barely has a HR department and is old fashioned in the legal sense. Thanks for your time. Best regards. Scott
Ben Jones :

you are welcome all the best

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