Disability leave and disability-related absence

Under the Equality Act 2010, employers are under a statutory duty to make reasonable adjustments to remove any disadvantage suffered by a disabled employee in doing their job role when compared with a non-disabled employee. This typically includes:  

• Amended duties
• Altered hours
• Workplace adaptations
• A phased return to work following serious illness or injury.

Disability leave is also classed as a reasonable adjustment which allows employees to take leave relating to their disability without facing detriment.

Allowing an employee to take a period of disability leave is cited as an example of a reasonable adjustment in the Statutory Code of Practice published by the Equality and Human Rights Commission (EHRC) which accompanies the Equality Act 2010.

Some reasonable adjustments might be around trigger points for absence, for example, where the employer has in place a system that triggers a performance review, dismissal or disciplinary if an employee reaches a certain number of absences. Alternatively, adjustments may need to be made to any redundancy-selection criteria based on attendance.

In all cases, where taking time off work for a disability-related reason is likely to discriminate against a disabled employee, and the employer fails to make specific provision for disability leave, as distinct from any other type of leave, this will amount to unlawful discrimination.

Employers should have policy in place for when employees need time off work for reasons related to their disability. This should set out the purpose and scope of the policy and the protections afforded to disabled employees under the Equality Act 2010. The policy should also set out clear guidance on how to request disability leave, accepted reasons for disability leave, and how each request will be assessed.

If there's no absence policy in place, employees should ask their employer what type of leave to use and how they will record the absence.

If you would like support in getting a disability absence policy, put in place, our equalities team can help you get the conversation started with your employer. Simply get in touch at equalities@community-tu.org for further information and support. Alternatively, download our model disability leave policy here.

Absence related to disability can be divided into two categories:

• Disability leave; and
• disability-related sick leave.

Disability leave is distinct from sick leave as it refers to time off work for disability-related reasons, but does not include time off work when you are sick, even when the sickness relates to the disability.

The needs of each disabled employee can be different, so each person should be assessed individually. Common examples of disability leave can include:

• Assessments for medical conditions
• Blood tests
• Counselling sessions for mental health related disabilities
• Having disability-related equipment serviced or fitted
• Hospital, GP, and medical check-ups and treatments
• Recovery time after treatment
• Rehabilitation
• Time spent waiting for employer to implement workplace adaptations
• Therapy
• Training for using specialist equipment
• Training with a guide, hearing, or assistance dog
• Training in the use of Braille, signing or lip reading

Whether or not disability leave also applies to disability-related sick leave can differ from workplace to workplace and is ultimately up to the employer’s discretion. Some employers may have specific policy in place related to disability-related sick leave, and some may address leave under standard sickness absence policy.

Click here to find out more about your rights when taking sick leave, including self-certification, sick notes, and statutory sick pay (SSP).

If an employee had had several absences related to their disability, they might need reasonable adjustments to be put in place.

Under the Equality Act 2010, employers must make adjustments for their disabled employees if the adjustments are “reasonable”. What is considered “reasonable” entirely depends on the circumstances as adjustments are specific to each employee and their disability needs.

Some adjustments may be around trigger points for absence if the organisation uses a trigger point system. This is a system that triggers an absence review if an employee reaches a certain level of absences. Therefore, reasonable adjustments could be made to not count some or all sickness absence related to a disability toward trigger points, or increasing the number of absences that will trigger a review.

Another example of a reasonable adjustment could be recording disability absence separately to sickness absence. This is sometimes known as disability leave or disability-related sickness absence.

Deciding if adjustments are reasonable

It is impossible to give concrete guidelines for the amount of disability leave an individual employee may need, or how much time off may be reasonable for the employer.

Before deciding on any adjustments, employers should speak with their disabled employee and consider their specific situation. Their decision should consider:

• Why their employee needs time off;
• how much time their employee needs off;
• the impact of not making adjustments; and
• the impact on colleagues and the organisation.

While employers do not have to make adjustments if they deem them not reasonable, they must first ensure that their decision will not put their employee at a disadvantage because of their disability. Failure to do so may result in a disability discrimination claim. To find out more about reasonable adjustments, your rights and how to make a reasonable adjustment request, click here to download our guide.

Disability leave should always be recorded separately to sick leave to avoid any unfair treatment or detriment to the employee. Similarly, employers should also record disability-related sick leave separately to minimise the risk of unfair treatment against employees with disabilities, or at least discount some, if not all when it comes to trigger points for performance reviews, disciplinaries, dismissal or bonuses related to absence levels. This will ensure that the employer is not unlawfully discriminating against an employee.

In cases of disability-related sick leave, this will often be managed in the same way as ordinary sick leave, in line with the procedures set out under any sickness absence policy, unless the employer has specific disability-related sick leave policy. However, by asking employees on self-certification forms if their absence was related to a disability, this will help the employer to record these absences separately from ordinary sick leave.

It is also expected that employers should consider paid disability leave for treatment, rehabilitation, or assessment, or where employees are waiting for other reasonable adjustments to be implemented, such as adaptations to the workplace.

Being paid while on disability leave will depend on whether your employer offers:

• Statutory sick pay (SSP) – the minimum amount your employer must pay if you are eligible
• Contractual sick pay – will depend on organisation to organisation but is more than the legal minimum

To find out what you should be paid while on disability leave, you should check your contract of employment and/or your workplace’s absence policy. Alternatively, speak to your HR department.

While dismissing an employee on disability leave may seem unfair, it ultimately depends on the circumstances. If an employer can justify dismissing an employee on disability leave, it will be lawful. For example, the business is small and therefore cannot survive with an employee on long-term disability leave.

Disabled employees who can no longer perform their job roles or meet the required levels of attendance (taking into consideration any adjustments made) may be dismissed on grounds of capability.

Even if there is no prospect of an employee on long-term disability leave returning to work, dismissal should only be used as a last resort. Employers must first consider every alternative option available to them, such as putting in place reasonable adjustments or adjusting working hours before considering ending a disabled employee’s contract of employment.

Employers must have a justified reason to dismiss an employee on disability leave. Their reason for dismissal must also have to be one that could not be removed by a reasonable adjustment. Failure to do so could amount to unlawful disability or disability-related discrimination and automatically unfair dismissal.

Under the EHRC Code of Practice states, when dismissing an employee with a disability, employers must ensure that they are not being discriminatory.