Simple Disability and Fairness
One of our employees recently used bad language and refused to do a job as requested by his manager. He was suspended and asked to attend a disciplinary hearing with the right to a companion. He is a ‘bit simple’ and his mother has asked if she can accompany him. She is not a proper employee although she does a bit of casual work for us. We have said no to her as she can be over protective of her son and we think she will speak for him and probably will get emotional with us, so we would prefer to avoid this from happening as we intend to dismiss him, as both bad language and insubordination are defined as gross misconduct.
For a start the law does not distinguish casual employees from ‘proper’ ones in terms of the right to be accompanied, therefore it is possible that she would be classed as a work colleague, denying her the right to attend the disciplinary meeting as her son’s companion could well be a breach of the ACAS Code or Practice. Definitive advice would be dependant on the facts of her contract but more importantly your description of his mental capacity makes it sound like he is ‘disabled’ within the definition in the Equality Act and as such you have a duty to make reasonable adjustments for him. Allowing someone other than an employee (or accredited Union rep) would be a reasonable adjustment, so you are likely to lose any subsequent disability discrimination claim. Given that there is no limit to compensation for discrimination then this could be a costly mistake, especially as he may struggle to find a new job.
A common sense approach is required and you should read this across to the issue of dismissing him, or not. Apart from the issue of whether or not you have handled the procedure properly, by not having had a full investigation prior to the disciplinary hearing, you appear to have jumped to conclusions about the incident. His bad language might have been due to his inability to articulate properly why he felt he could not or should not do a particular job, or indeed due to the way he was spoken to. You must also consider the nature of the bad language and whether it goes to the heart of the relationship and whether he is likely to refuse a reasonable instruction in the future.
This does not mean people with protected characteristics are immune from the usual performance and conduct standards that apply in your workplace, just that you recognise and allow for their ‘difference’. You must however think about whether you should make reasonable adjustments to the standards you apply to workers, and whether these standards place disabled workers at a substantial disadvantage compared to people who are not disabled.
The guidance provided in this article is just that – guidance. It is not legal advice as every case depends upon the facts. The law is forever changing and you need to keep up with these changes to ensure that you are behaving in the correct way.
Before you take any action make sure that you know what you are doing, or call us for proper advice.