Before You Take Disciplinary Action, Are You Sure You Have the Full Picture?

There are occasions in HR when something initially looks relatively straightforward. An employee is repeatedly late, they haven’t followed a procedure, their performance has deteriorated, they have failed to attend a meeting or perhaps their behaviour towards their manager or colleagues has become difficult. The natural reaction is often to look at the problem in front of you and decide how it should be managed.

Sometimes that will be exactly the right thing to do. But where an employee has a disability, or there is information which suggests that their health may be affecting what is happening at work, there is another question employers need to ask before deciding what happens next:

Is there a connection between the behaviour I am concerned about and the employee’s disability?

It sounds like a relatively simple question, but it is one that can make a significant difference to how an employer should approach a situation.

“We’re not taking action because they’re disabled”

I can imagine many employers reading this and thinking, “Of course I wouldn’t discipline somebody because they have a disability. I’m concerned about what they’ve actually done.”

And that is an entirely understandable response.

Perhaps an employee has failed to follow an important procedure and the manager genuinely believes that they should have known better. Perhaps their lateness is causing problems for the rest of the team, or mistakes are beginning to affect customers. Maybe communication has become increasingly difficult and the manager feels they have reached the point where something needs to be done.

The employer’s concern may be completely genuine and there may be absolutely no intention whatsoever to treat the employee differently because they are disabled.

However, that doesn’t necessarily mean there isn’t a discrimination risk.

One of the protections contained within the Equality Act relates to situations where somebody is treated unfavourably because of something arising as a consequence of their disability. In practical terms, that means we sometimes have to look beyond the immediate behaviour and ask why it happened.

That distinction is really important.

What might this look like in the real world?

Imagine an employee has a condition which affects their concentration and they begin making mistakes at work. Those mistakes may be causing a genuine problem for the business and it may be entirely reasonable for the employer to want to address them. However, if the mistakes are happening because of the employee’s condition, there is potentially a connection between the disability and the very thing the employer is concerned about.

The same could apply to an employee whose medication causes significant tiredness and who consequently struggles with punctuality, or somebody experiencing mental health difficulties who becomes withdrawn, stops communicating with their manager and misses an important meeting. An employee with a condition affecting their memory might repeatedly forget part of a process, while somebody who is neurodivergent may communicate or respond to a difficult situation in a way their manager doesn’t expect.

None of this means that the employer has to ignore the problem. The mistakes still need addressing. Attendance may still need managing. Procedures may genuinely be important and there may be circumstances where formal action ultimately becomes appropriate.

What it does mean is that the employer needs to understand the reason for what is happening before deciding what to do about it.

That is where the practical lesson lies.

Don’t let an assumption become the conclusion.

In my experience, difficulties often arise because a perfectly understandable initial assumption gradually becomes accepted as fact.

An employee doesn’t respond to several emails, and the assumption becomes that they are deliberately ignoring their manager. Someone repeatedly arrives late and is seen as unreliable. An employee becomes abrupt or difficult in meetings, and the conclusion is that they have an attitude problem. Someone fails to follow an instruction, and the manager believes they simply couldn’t be bothered.

Any of those explanations might ultimately be correct, but they might not be.

If there is information suggesting that health or disability could be playing a part, it is worth taking the time to understand what is happening before deciding that the matter is misconduct or poor performance.

That doesn’t require managers to become medical experts, nor should they attempt to diagnose employees. It may involve having a conversation with the employee and allowing them to explain. In other circumstances, it might mean looking again at medical information already available, considering an Occupational Health referral or exploring whether reasonable adjustments could help.

Quite often, asking one additional question at the beginning can completely change the direction of the conversation.

Informal doesn’t mean doing nothing

This also links to something we are going to be talking about considerably more over the coming months.

ACAS is currently consulting on a proposed new Code of Practice on disciplinary and grievance procedures, and one of the themes running very clearly through the draft is the importance of resolving workplace concerns early and informally wherever appropriate.

I think that is a helpful reminder for employers because “informal” can sometimes be misunderstood as meaning that the employer isn’t properly dealing with the problem.

It doesn’t mean that at all.

An informal conversation can still be clear and robust. You can explain what has happened, why it concerns you and what you expect going forward. The difference is that the conversation also gives you an opportunity to listen to the employee’s explanation and understand whether there is something else contributing to the problem.

In the context of disability, that conversation could be particularly important. It may identify a reasonable adjustment that would resolve the issue, highlight a need for additional support or simply give the employer information they didn’t previously have.

Equally, it may establish that there is no connection with the employee’s disability and that the matter does need to be managed in the usual way.

The important thing is that you have asked the question rather than assumed the answer.

There will, of course, be circumstances where informal resolution isn’t appropriate. Serious allegations, including potential gross misconduct, may need to move directly into a formal process. But for the many everyday workplace issues that sit somewhere between a minor concern and a formal disciplinary matter, a sensible conversation can often achieve far more than immediately reaching for the disciplinary procedure.

What if I didn’t know the employee was disabled?

This is another area where employers understandably become nervous.

Not every disability is obvious, and not every employee will use the word “disabled” when talking to their employer. In fact, somebody may not consider themselves disabled at all.

Many conditions which can potentially meet the legal definition of disability aren’t visible. Mental health conditions are an obvious example, but the same can apply to neurodivergence and a wide range of long-term medical conditions.

This doesn’t mean employers are expected to diagnose their workforce or somehow know information that genuinely isn’t available to them. What it does mean is that managers should pay attention to what they are being told.

If an employee has mentioned an ongoing health condition, has had significant periods of absence, has provided medical information or has explained that a condition is affecting them at work, don’t ignore that information when another employment issue subsequently arises.

Sometimes you need to join the dots.

You can still manage employees who have disabilities.

I think this point is worth emphasising because employers can sometimes become so worried about saying or doing the wrong thing that they avoid addressing a genuine problem altogether.

That isn’t the answer either.

Having a disability doesn’t prevent an employee from being managed, nor does it mean that normal workplace expectations simply disappear. Employers are still entitled to expect reasonable standards of attendance, conduct and performance and, where there are genuine concerns, they are entitled to address them.

The difference is in how you get there.

Before deciding that something is misconduct, understand why it happened. Before issuing a warning about attendance, consider whether disability is contributing to the absence. Before deciding somebody isn’t performing, consider whether an adjustment might enable them to do so. And before concluding that an employee is simply being difficult, give them an opportunity to explain what is going on.

Once you understand the full picture, you are in a much better position to decide what is reasonable and appropriate.

My advice to employers

If I could encourage managers to add one question to their thought process before starting a formal procedure, it would be:  “Is there anything else going on here that I need to understand before I act?”

It is a useful question in almost any employee relations situation, but particularly where health or disability may be involved.

Sometimes the answer won’t change anything and formal action will still be appropriate. On other occasions, it may reveal that what initially looked like a conduct or performance problem is actually something that could be resolved through a conversation, an adjustment or some additional support.

Either way, you will be making your decision based on the full picture rather than an assumption.

And, in my experience, taking a little more time to understand what is happening at the beginning is almost always preferable to trying to unravel a much bigger problem further down the line.

If you are dealing with an employee issue where health or disability may be part of the picture, and you are unsure whether to deal with it informally or move into a formal process, please speak to us. We can help you work through what is happening, the questions you should be asking and the most appropriate way forward.