Disability and performance management

As a manager you have a vital role to play in monitoring attendance and performance of employees with disabilities. It is down to you to ensure that the people you manage meet their objectives and performance targets. You are responsible for creating an open and supportive environment at work where employees can talk about any problems, and it is your job to help them develop and contribute to overall goals. It is also your responsibility to take action if a member of your team is not performing to the standards required. In these situations it is particularly important for you to know your legal obligations and to act fairly towards anyone who is not performing well because of a disability. You are required by law to make changes or ‘reasonable adjustments’ to help disabled employees work to the best of their ability. Reasonable adjustments are not about treating some people more favourably but rather about recognising you need to treat people differently in order to treat them fairly and to enable them to realise their full potential. By making reasonable adjustments you should be removing barriers faced by disabled people in the workplace because of their disability, and therefore ‘level the playing field’. Once barriers have been removed the performance of disabled employees can be assessed in the same way as their nondisabled colleagues.

The only difference between managing disabled and non-disabled employees is that the performance of disabled employees must be assessed after reasonable adjustments have been made. Learning how to make reasonable adjustments and manage people with both visible and nonvisible disabilities is part of being a good manager. You should not think about managing disabled employees as separate to your other duties as a manager – good managers know how to manage difference, whether apparent or not, in order to get the best from all members of their team. Everyone is different, there is no such thing as a ‘standard’ employee.

Employees who have clear direction from their manager and receive regular feedback on how they are doing have higher levels of job satisfaction and are more likely to want to stay with your organisation.

Recruitment

Consider right from the start whether the job could be done with reasonable adjustments; for example from a different location or from home or with adaptive software.  Starting work and the probationary period, although it isn’t a legal requirement most organisations have a probationary period for new employees during which their performance and suitability for the role continue to be assessed.

Probationary periods should be for a fixed period of time – three or six months depending on the job and the seniority of the position, with more senior positions having longer probationary periods. In essence the period should be long enough for the employee to learn the key elements of the job and for you as the line manager to assess whether the new employee will be capable of fulfilling the requirements of the role. Probationary periods should be structured to allow you to assess and review the new employee’s performance, capability, training and development needs and suitability for the role.

Remember to explain this to the employee, it is important they understand that if their performance is not satisfactory they may not be retained in post. Employees who need reasonable adjustments will only be able to demonstrate they can do the job to the standard required if they have adjustments in place and working effectively. If the reasonable adjustments are in the form of equipment or technology try to ensure they are in place before the person starts work. If the adjustments are to working hours or location, allow the person to work the hours, and from the location, agreed during the probation period. During the probation period you should:

•       Regularly monitor the new employee’s performance at progress meetings.

•       Identify and discuss any problems as soon as possible.

•       Provide regular constructive feedback, support and guidance.

•       Provide any necessary training and coaching.

Employees can only demonstrate their capabilities and suitability for the role if they are clear about what is required from them. This means that at your first meeting you must ensure the new employee understands:

•       What outputs or deliverables are required of them by the end of the probationary period, i.e. what do they have to achieve and by when.

•       The standard of performance required of them, i.e. what does good look like and what is not good enough, illustrated with examples.

•       How their performance will be measured, i.e. any standards or measures you regularly use. These could be from data collected electronically, quality control measures or feedback from customers or colleagues.

•       What standards of conduct or behaviour are required which may include how they dress or liaise with clients and colleagues.

•       Any areas where they will need to develop their skills or knowledge.

•       What they should do if experiencing problems or if adjustments aren’t working effectively.

Progress meetings

You should meet the new employee to discuss progress at least once a month during the probationary period. It is a good idea to put these meetings in both your diaries as soon as the employee starts work. This should stop them slipping or being forgotten – particularly when you are busy. Employees need to understand that progress meetings are a time when open and confidential discussions can take place on a one-to-one basis with their manager about their performance.

What to do at progress meetings

•       Ask the employee how they think they are doing.

•       Start by giving positive feedback on what’s going well and give examples, i.e. ‘the report you wrote was clear and well structured’ rather than making general statements such as ‘you seem to be doing well’.

•       Explain clearly where the standards you require are not being met, again by giving examples, and explore together why that might be, e.g. ‘We didn’t get that client. Why do you think that was?’

•       Discuss any training and development needs.

•       Agree an action plan stating what needs to be done by the next progress meeting and by whom and by when. This should include your actions as well as those of the employee. Action plans will help you monitor progress.

•       Keep good records of what is discussed at these meetings including what has gone well and areas in need of improvement, steps to improve performance, training and development plans and most importantly any reasonable adjustments identified as necessary and a timetable for their implementation and review. A ‘Tailored adjustment agreement’ will help you keep a record of what has been agreed and provide a framework for future conversations about adjustments.

What not to do

•       Try not to cancel, postpone or delay meetings or to cut them short or allow interruptions.

•       Do not use negative or accusatory language, i.e. ‘your weaknesses’ or ‘failures’ but rather explain what or where the employee has gone wrong and what they need to do in future.

•       Do not assume that if targets are missed or performance has fallen short that this was the fault or even within the control of the new employee. Get the facts and remember there may be barriers you need to remove for the employee particularly if they have a disability they might or might not know about.

Final review

You must also schedule and hold a final review meeting at which, hopefully, you will confirm the employee’s appointment. If you don’t hold this meeting the employee’s employment will be confirmed by default which may not be what you wanted. It may be necessary in some cases to delay this confirmation because the employee has not demonstrated they are capable of doing the job for which they were employed because:

•       Reasonable adjustments they needed have not as yet been identified or implemented for long enough to assess performance.

•       The employee has been absent from work through sickness or some other reason.

•       Performance has not improved even after training and adjustments.

The law

Probation periods should not be extended beyond a total of a year before confirmation or dismissal. An employee whose contract is terminated after a year of working continuously with you can make an employment tribunal claim if they believe the decision to end their employment was unfair. This means you must assess a new employee’s performance from the day they start to work for you and take steps quickly to help them improve if their performance does not meet your expectations. If it turns out the employee is not in the right job it is better for everyone to find this out quickly and allow the employee to move onto something that suits them better. If reasonable adjustments are not implemented in a timely fashion during the probation period and the employee is subsequently dismissed they may also be able to claim disability discrimination. They do not need to have worked for you for a year to do this. It is vital to identify the adjustments needed and implement them as quickly as possible. You can then assess whether the employee will be able to do the job for which they were hired, the help and training they may need, or if they are unsuited for the role. You may need the help of your colleagues to ensure this happens but it is your job to ensure it does happen.

Terminating the employment contract at the end of the probationary period

If the employee’s performance does not improve after reasonable adjustments and training plans have been implemented and (perhaps) the probation period extended, you may need to terminate their contract of employment. In these cases you will be dismissing the employee because they are not capable of doing the job; this is a fair reason for dismissal if you have done everything you reasonably can to help them do the job.

Ongoing performance management

The need for regular meetings between the line manager and employee does not end as soon as the person is confirmed in post. Performance management is ongoing and managers need to have regular review meetings with their staff. The frequency of these meetings will depend on the experience and seniority of the staff member; more senior or experienced employees generally needing less frequent meetings. The purpose of these meetings is much the same as for the progress meetings during the probationary period. Review meetings should also be confidential and on a one-to-one basis. Not every meeting will need to include everything listed below but they are an opportunity for you to:

•       Catch up on work the employee is doing and to monitor workload.

•       Provide constructive feedback and in particular to praise good performance and to talk about areas where improvement may be needed.

•       Talk to the employee about any changes in their performance or behaviour. This could be related to problems at home or work or because the employee has developed a disability or an existing disability has worsened. Remember they might not be aware they have a disability.

•       Talk about changes in the way the employee works either on a temporary or permanent basis that may help overcome problems.

•       Consider whether the employee needs to be referred to an occupational health adviser to help identify the problems they are having at work and adjustments that would overcome them.

•       Discuss development and training needs.

•       Review reasonable adjustments to ensure they are still effective. A good way of doing this is by using a ‘Tailored adjustment agreement’

Keep good records of each review meeting detailing any action to be taken and by whom. At each meeting you should refer to the notes from the last meeting.

Dealing with poor performance

If you have concerns about an employee’s conduct or performance you should deal with this as soon as possible. Providing and receiving constructive criticism or negative feedback is difficult and both of you may be feeling defensive. It is important to be well prepared and to have the facts to hand. Concentrate on giving examples and try to avoid discussing personalities, always bear in mind that the person’s performance might be affected by a non-visible disability. This could be a disability they are as yet unaware of or one newly diagnosed. It could also be a disability they have had for some time but is only now having an effect on their work, either because it or their medication has changed, or because their work has changed. You must ensure the person doesn’t think they are being disciplined when you first talk to them about your concerns. Start by giving positive feedback before moving onto how you would like to help improve performance in areas where they are not being as effective as you would like.

It is always better to ask ‘open’ questions rather than ones allowing for a ‘yes’ or ‘no’ answer. This will encourage the person to talk… and you must listen carefully to what they say.

Examples of open questions that may identify why someone has not been performing well:

•       Why do you think you missed the deadline for the report?

•       What do you think is stopping you from getting into work on time?

•       Why do you think you got so upset/angry when talking to X?

•       Why do you think you didn’t meet your call target?

•       Why do you think you’re not closing sales?

An employee may simply apologise and say they will try to improve without answering your questions. If you just accept this you are likely only to delay having to deal with the issues – especially if the person has a disability (whether known to them or not) that means they need help or changes to the way they work.  You need to press gently for answers while giving reassurance that you want to help. They should understand they are not in trouble yet but that their performance does need to improve. You need then to drill down with more specific questions to try to find out exactly what the problems are and to find possible solutions. Be specific about:

•       The tasks or behaviour you want to talk about – give dates and examples.

•       What you expected from the person.

•       How their performance or behaviour fell short of what you were expecting.

•       What you want to change and by when.

•       What will happen if there is no improvement.

When talking to an employee about their performance choose an appropriate time and place, describe how the person’s performance fell short of the required standard with specific examples and talk about the work and not the person, for example ‘The sales figures for last month’ rather than ‘Your aggressive manner with customers’. Describe exactly what needs to change and what good performance looks like, try to establish the reason for the poor performance and identify solutions or reasonable adjustments. Describe the help and support you can provide.

State clearly what you will do next if the performance does not improve. Ensure you know the minimum or mandatory aspects of the job the person does and where they have been doing well and where there is cause for concern. Examples of common areas of concern are:

•       The quality of the work.

•       The quantity of work and the speed at which it is being done.

•       Working relationships and communication skills.

•       Timekeeping.

•       Planning and organisational skills.

•       Initiative and motivation.

•       Supervisory abilities.

•       Sickness absence.

Suggestions for how performance in these areas may be improved with reasonable adjustments are given below. Having outlined your concerns clearly and with examples you need to move onto ways in which you can help the person to improve.

Talking about health and disability

If the person appears to be in pain or distressed don’t be afraid to ask them about this by saying something like: “I’ve noticed you seem uncomfortable at your desk/have been taking painkillers quite a lot/been rather upset/angry recently. We need to talk about this. If it’s something to do with work, perhaps I can help?”

In many cases this will be enough for the person to reveal that, for example, they have back pain or have been getting bad headaches. These could be caused by their workstation, or by overhead lights or noise in the workplace. You should ask what they think is causing the problem and if necessary refer them to your occupational health adviser and you should never ignore an employee who is distressed at work. If they have been crying or had an angry outburst, talk to them to try to discover the cause, if you are reassuring and they don’t think they are in trouble they may be willing to tell you what’s wrong. In some cases the person you are talking to may insist nothing is wrong and if you point out behaviour or work you have concerns about they may become defensive and find excuses or blame others, this is why it is important to ensure you have all the facts before you speak to an employee who is underperforming.

You need to be able to refer to work the individual has done or specific behaviour you want to discuss, in other cases the person may accept their work or behaviour has been unacceptable and will promise to improve, but refuse offers of help. In either case, if the person doesn’t want to talk about problems outside work or health problems, you cannot insist they do so.

It is not your job to try to diagnose a disability. Suggesting they might have a disability, for example dyslexia or a mental health problem, is likely to go down badly. Whether disabled or not, all employees need to know what you require of them, and what is and what is not an acceptable standard of work and behaviour in the workplace, employees need to understand that if they refuse your offers of help and reasonable adjustments and their performance continues to fall short of minimum standards, they do ultimately risk capability proceedings being taken against them.

Areas for improvement and adjustments that may help

These are some common areas where employees fail to meet required standards, followed by suggestions for reasonable adjustments that may improve performance in these areas. These are just suggestions; every employee and situation is different, as a manager you must talk to the employee about the issues that concern you and identify possible solutions. You may need to seek help from experts such as your occupational health adviser, HR department, IT and Facilities teams or Access to Work to find the best solutions.

Quality of work

Problems with accuracy, comprehension or retaining information may be overcome by:

•       Software that reads out text so the person can hear what they have written and spell checking software that can be set to correct common mistakes.

•       Reducing interruptions either by providing a quiet space, allowing the person to have a ‘do not disturb’ sign and diverting phone calls to voicemail or someone else, or working from home from time to time.

•       Additional training.

Quantity of work or speed

A new employee may work more slowly simply because they are unfamiliar with the work and the person will get faster as they gain more experience. In some cases the speed at which the person works may be improved by:

•       A change in seating, lighting or temperature to make the person more comfortable or to reduce pain.

•       Allowing more breaks or permission to eat at their workstation to keep up blood sugar levels or working from home from time to time to reduce tiredness caused by commuting.

•       Software that reads out text and spell checking software.

•       More appropriate computer equipment, e.g. keyboard, mouse or monitor.

Most managers want employees who display a positive ‘can do’ attitude and who get on well with fellow team members and customers/clients if relevant, you do need to consider, how important these attributes are for the essential tasks the person has to perform, someone with a disability like Asperger’s syndrome, depression or who is managing pain may find it difficult to display these behaviours. You may need to:

•       Agree a method for the employee to tell you they are having a bad day so you understand their behaviour and perhaps allow them to work undisturbed.

•       Agree what to tell colleagues. The person may not want their colleagues to know precise details of their disability but you could agree that people working closely with them will be told what behaviours to expect and why, or perhaps even be given some information or training about the particular disability, e.g. mental health or Asperger’s syndrome awareness training.

•       Provide coaching or mentoring to help them understand the workplace, expected behaviours and how to interact with the team.

Timekeeping

First be precise about the nature of the timekeeping problems. Is the person persistently late in the mornings, do they take too long at breaks or are they often late for meetings? Then try to work out why they are late and what may help them to be on time.

•       Is it essential for the person to arrive at a certain time? If not then allowing flexible working may help, e.g. from 8am to 4pm on one day and from 10am to 6pm another if they get tired or are having problems travelling during the rush hour.

•       If it is essential for them to be at work at a certain time explore whether they could log on remotely so they do not have to travel on days when they are in particular pain or experiencing fatigue. Some people may benefit from help with planning their journeys so they know when they need to leave home in order to be on time.

•       If they are late coming back from breaks or for meetings it might be because they are easily distracted or get so caught up in their work they lose track of time. Reminders on their calendar with pop up screens or a wrist watch alarm might help.

Planning and organisational skills If the employee fails to meet deadlines, struggles to prioritise their work or to manage reasonable workloads, consider:

•       More supervision to help the person understand their job role better and priorities their work.

• Manageability of the workload, does the employee have additional duties?

•       Professional assessments to find out if the employee has a disability such as dyslexia. If so, provide coaching to help the employee with planning.

Supervisory ability should be considered

If the employee is not providing adequate leadership or supervision to people they manage, consider:

•       Training on management skills, time management, leadership or assertiveness.

•       Does the person’s workload and objectives mean they do not have enough time to manage their team effectively? In this case you may need to reallocate some of their duties or help them to delegate.

•       A mentor who is an experienced supervisor or manager.

Initiative and motivation

In order to progress in their career, employees usually have to demonstrate they can act on their own initiative, are self-motivated and willing to volunteer for additional duties or involvement with the organisation. If one of your team is not displaying these qualities, consider:

•       Is the employee performing their core duties well? Some employees are happy doing their job and do not want promotion or to progress in their career. This is something that needs to be explored with the employee.

•       Are reasonable adjustments needed to reduce pain or fatigue so the employee has more energy to devote to their job?

•       Does the employee lack self-confidence? They may benefit from additional training or a mentor.

Sickness, disability-related absences and attendance management

There are two common types of sickness absence:

•       Long-term absence where the employee is away from work for more than one or two weeks.

•       Short-term intermittent absences.

Long-term absences

As a manager you need to ensure you stay in touch with employees who are on long-term sick leave. Your organisation may well have a policy for dealing with sickness absence or attendance management that you should be ready to implement. Commonly such policies give advice on:

•       Staying in touch with an employee on a long-term absence.

•       Referring employees to an occupational health adviser to obtain advice about barriers the employee may be facing at work and how these can be overcome so the person can return to work.

•       Providing cover for absences.

Short-term or intermittent absences

If an employee is taking too much time off sick, first check to see if there are any patterns, i.e. more days following a day off or weekend or more in the summer than winter. Then talk to the person about their absence levels and explain that they are not acceptable and that you want to help them to improve their attendance, a referral to an occupational health adviser might be needed to identify adjustments to help the person do their work without having to take so much time off sick.

Both disabled and non-disabled employees need to understand that if their attendance doesn’t improve (after reasonable adjustments have been made) capability proceedings may be started which could ultimately lead to their dismissal, you do not have to discount all disability related absences although you might decide it is reasonable in some circumstances to accept a higher level of absence from a particular disabled employee.

Managing the performance of remote workers

Managing remote workers may require you to change how you manage people and assess and measure performance. Experience has shown that most people allowed to work in their own time and in the location of their choice respect the freedom they have and work hard. You may need to move from managing and assessing input to assessing output. Performance measures when managing input may be:

•       Hours worked.

•       Attendance or visible presence.

•       Visible effort.

Performance measures for remote workers include:

•       Goals or objectives achieved.

•       Work delivered on time.

•       Contribution to the organisation’s overall targets.

An employee who puts in long hours in the workplace will not necessarily produce more or better quality work. Measuring output, as in objectives achieved and work delivered, as you must for remote workers may therefore be better for all employees, remote or not, and the organisation as a whole. It may have the added benefits of preventing employees from developing stress, depression and anxiety disorders from spending unproductive hours in the workplace and free you up as a manager to produce more.

Electronic monitoring

It may be possible to monitor remote workers in your organisation through their computer or mobile phone usage. Be careful, however, as such monitoring may be unlawful and should not be done without the employee’s knowledge and consent.

Performance appraisals

Employees should not be surprised by what you say to them at their appraisal, instead they should be constructive discussions about how the employee contributes to your organisation and their development as a valued member of the team. All too often performance appraisals are dreaded by both manager and employee; viewed as tedious form filling exercises or the scene of conflict and disagreement.

If appraisals are to be productive for both parties, performance should be managed on an ongoing basis, this means having notes from the probationary progress meetings and/or regular review meetings to consider prior to the appraisal. Performance appraisals are an opportunity to:

•       Review past performance.

•       Set objectives for the future.

•       Help every employee to improve their performance

•       Discuss career development and possible promotion.

Performance appraisals should not be used to:

•       Raise performance concerns for the first time.

•       Instigate disciplinary proceedings or performance review measures for conduct or performance.

•       Air views about the employee based on assumptions or personal prejudices even if, or indeed particularly if, you don’t like the employee.

Preparing for appraisals

A successful appraisal requires preparation:

•       Consider your progress meeting notes from the probation period or from regular review meetings since the last appraisal. Remind yourself of examples of good performance and those where the employee’s conduct or performance was not of the standard required, the appraisal must be based on facts not generalisations.

•       Obtain and read feedback from customers, clients and appropriate colleagues (bearing in mind they may not be aware of the person’s disability or need to work differently). Some organisations have 180 or 360 degree appraisals making this a requirement. It is also particularly important for managers who do not work in the same location as the employee who may, for example, work from home as a reasonable adjustment.

•       Read the employee’s job description to remind yourself what the person was employed to do and to check if the role has changed significantly. A new job description may be needed.

•       Read records of reasonable adjustments agreed with the employee. These may have been adjustments you agreed or were implemented by a previous manager. Some organisations use a ‘Tailored adjustment agreement’ to record such adjustments.

Looking forward – setting objectives

Appraisals should also be about setting objectives for the future, when setting objectives try to take a broad view of the employee and their potential and so, as well as setting specific job objectives, think about career and training goals that will help the employee develop their skills and abilities. Always consider reasonable adjustments needed for the person to achieve objectives. Objectives should:

•       Be clear and precise about what needs to be done.

•       Be measurable if possible.

•       Challenge the employee but still be achievable.

•       Describe the output or end result required.

•       Have realistic timeframes.

Most importantly objectives should be agreed with the employee and not seen to be ‘imposed’.

Career development and mentoring

An important aspect of performance management is career development, managers should talk to every employee, including those with disabilities, about where they see their career going and help them identify the skills they need to acquire in order to progress, when talking to disabled employees about career progression consider:

•       Training needed to acquire or develop specific skills or knowledge. These are discussions you should be having with every employee, and remember you must ensure all training is accessible for disabled employees.

•       Personal development training. Many employees whether disabled or not, will benefit from training that helps develop confidence and understand their personal strengths and weaknesses. Such training may be particularly helpful for disabled employees who have not done well in mainstream education or have not been in employment before.

•       Leadership training. Don’t assume disabled employees don’t have the potential to become leaders. If you spot potential in any employee encourage them to realise this with leadership training.

•       Mentors and buddies. Buddies are usually employees who are on the same level or grade or do the same job as the person they are ‘buddying’. A disabled employee may find it useful to have a buddy when they first start work or when they are promoted. The buddy’s role is to help the employee understand how to do the job and introduce them to colleagues by accompanying them to meetings and work-based social events. Buddies can be particularly helpful for employees with learning disabilities or autism or Asperger’s syndrome.

•       Mentors are usually in a more senior role and one to which the person being mentored may aspire. Mentors can be internal or external – more senior employees often have a mentor in another organisation who can be more objective and help the person to achieve their overall career goals.

Not every employee wants to progress, talk to your employees about their life goals as some people are happy with the job they have because it pays enough, is in the right location, fits their skills and abilities and leaves them enough time for external interests. But some disabled people are reluctant to move from a job they are doing well, has the necessary reasonable adjustments in place and they can manage.

You will need to get to know the people who work for you to understand their needs and aspirations and try to find out if a disabled employee does not want to progress because they are genuinely happy with their current job or because they fear they will lose their reasonable adjustments or a good and understanding manager if they leave.

Managing poor performance – reasonable adjustments

Employees who are unable to meet their targets, goals or objectives because of a disability, as a manager you are likely to encounter three types of employee:

1.      Employees who perform well and need no adjustments beyond those routinely available to everyone in your organisation, such as flexible working. These employees may or may not have a disability.

2.      Employees who do need adjustments possibly because of a disability. Once the barriers they face at work have been identified and reasonable adjustments implemented the person performs well.

3.      Employees who are not performing well even after adjustments have been identified and implemented and for whom you need to think about what (if anything) else may be reasonable.

The law requires employers to make reasonable adjustments to enable disabled employees who might otherwise not be able to work to get a job and/or stay in work. Reasonable adjustments should remove or reduce barriers faced by disabled people. If these barriers are removed they should be on a ‘level playing field’ and be able to perform as well (or not) as any other employee.

Their performance is no longer adversely affected by their disability and so they can be assessed on their skills, knowledge, abilities and commitment which will vary from person to person as they do in employees without a disability, in some cases it will not be possible to remove barriers completely or the nature of the disability may mean no adjustment will enable the person to perform to the same level as a person without that disability and in these cases you will need to consider if it is reasonable in all the circumstances to reduce the disabled person’s targets and so set them lower targets.

Reducing targets for disabled employees

Lower quality of work

 As an employer and manager you do not have to accept lower quality work, you can set quality standards and must make adjustments to enable everyone who works for you to achieve them, if an employee is not able to meet those standards because of a disability you should:

•       Find out what the barriers are to achieving the standard required and make reasonable adjustments to remove or reduce them so the quality of work needed can be achieved.

•       Provide any additional training or mentoring needed to improve performance in this area.

•       If no reasonable adjustments will enable the employee to reach the standard required, work with the employee and your HR department to try to find a suitable alternative vacancy in your organisation to which the person can be transferred. A suitable alternative job will be one in which the employee can reach the performance standards required, again with reasonable adjustments if necessary, if no such vacancy exists you may have to dismiss the employee on capability grounds.

Lower amount or quantity of work

Some disabled people will not be able to achieve their targets for output even after reasonable adjustments have been made for them. This might be because:

•       They work more slowly than other people because of their disability.

•       They take longer to absorb and retain information because of their disability.

•       They are easily tired and so need to take more breaks and so work more slowly.

•       They take more time off sick because of a disability.

Marking an employee down in an appraisal if they have not met their targets because of a disability could be unfavourable treatment arising out of their disability and so discriminatory, as an employer you can legally justify such unfavourable treatment if you can show the treatment was necessary as a ‘proportionate means of achieving a legitimate aim’.

This means you need to think carefully about the overall aim or purpose of the targets and then consider if reducing the target is a reasonable and proportionate means of achieving the overall aim of the target. For example, a legitimate aim for targets set in a small business may be to increase sales and profitability in order to remain viable.

Every employee’s objectives may, therefore, need to contain sales targets in order to make a certain amount of profit. It may not, therefore, be reasonable for this business to reduce targets for a disabled employee and they may be justified because reducing targets is not a proportionate means of achieving their legitimate aim of staying in business. The legitimate aims of targets or objectives in larger organisations can be more complex. The aim may not only be to increase the organisation’s profitability but also to further its values, principles and mission. For example:

•       Being a great place to work.

•       Building and retaining trust.

•       Contributing to and reflecting the communities in which it operates.

•       Respecting people.

In order to further such aims your organisation may decide it will accept a lower output of work or change objectives for some disabled individuals. Lowering targets might be a proportionate means of enabling a disabled person who works to the best of their ability and makes a valuable contribution to your organisation’s overall purpose to stay working with you, this in turn can show your organisation respects people and is a great place to work, in addition, if you work in a public sector organisation you have a legal obligation to promote equality of opportunity for disabled people.

Some private sector companies have corporate social responsibility agendas that include promoting the employment of disabled people, your organisation might, therefore, whether public or private sector, choose to encourage disabled people to work there by accepting lower outputs from some disabled people.

 As a manager you need to be clear about your organisation’s aims, values and mission and you must ensure these are understood by the people who work for you, they (and you) need to know how their objectives relate to the objectives and purpose of the organisation as a whole, if you are reducing targets for disabled employees think about:

•       The overall objectives of the organisation and of your department or team that must be achieved. These could be financial targets or objectives relating to (internal or external) customers or clients.

•       The strengths and weaknesses of other team members. No two employees are the same and no one performs to a 100% of their capability all the time. As a manager you know you will have a range of abilities in your team and different employees will work at different rates and vary in their output. If you have enough members of the team who meet or exceed their targets you may be able to accommodate someone who is not able to meet their target because of a disability.

•       The effect on the rest of the team if you accept one member of the team has a lower target than others. If the person with the lower target adds value in other ways, e.g. they develop good quality relationships with customers, clients or colleagues or are better at follow-up paperwork, colleagues may be happy to accept an increase in their targets because the disabled person has lower targets. If, however, others have to work harder but can see no additional value to the team they are likely to become resentful.

•       Whether your organisation pays bonuses based on group or team performance. If this is the case other team members may resent someone who is unable to meet the targets needed to achieve the bonus. Discuss with your HR department whether adjustments can be made to the bonus scheme so, for example, the disabled person is given a head start or ‘runs on the wicket’ at the outset, or if their performance can be discounted and added back in as an average of the other team members. Considering how part-time workers are assessed may be a good place to start.

Contextual behaviours

Many organisations appraise employees not just on their skills, knowledge and abilities or ‘task performance’ but also on their behaviour or ‘contextual performance’, while skills, knowledge and abilities are directly related to the person’s job, contextual behaviours create the environment within which the tasks are performed and are often the same for everyone who works in the organisation. They can include:

•       Working as a team and succeeding together.

•       Acting with integrity.

•       Perseverance and dedication.

•       Cheerful enthusiasm.

•       Promoting and defending organisational goals and policies at all times

Contextual behaviours and disability

While managers understandably want to employ people who get on well with colleagues and are enthusiastic team members, some may not be able to display these behaviours because they have a disability such as autism or Asperger’s syndrome, dyslexia or a mental health condition like depression, if an employee’s behaviour doesn’t meet the organisation’s standards, consider it possible they might have a disability. Talk to the employee about their behaviour, but remember the person may not be aware they have a disability.

In some cases you will need to refer the person to an occupational health adviser who may contact a specialist for more information, if someone cannot display the behaviour your organisation requires because of a disability it may, depending on the nature of the person’s job, be a reasonable adjustment not to appraise their performance against that requirement, for example:

•       Someone with Asperger’s syndrome who has difficulty with interpersonal communication and relationships may not be a good team worker. They may nevertheless be good at the tasks required in their job which may essentially be solitary and technical in nature.

•       Someone managing depression might find it difficult to be enthusiastic and cheerful all or even some of the time but be able to perform the essential tasks of their job.

•       Someone managing pain might find it difficult to be co-operative and a good team worker if this means volunteering for additional duties or working longer hours.

 If an employee with a disability is marked down in a performance appraisal for failing to meet these behavioural requirements they may be able to claim disability discrimination if the reason arises from their disability, you must therefore make adjustments to behavioural requirements where it is reasonable to do so.

Calibration or forced distribution

Some organisations use a forced distribution system or recalibrate performance appraisals, this means individuals are not just assessed against their own goals and objectives but against the performance of colleagues.

Systems vary and can be complex but essentially you may be asked to rank members of your team with a certain percentage – some as high performers, others in the middle and some as in need of improvement. Other systems require managers to assess an employee against their own objectives first and to assign a ranking such as ‘exceeds expectations’, the employee is then assessed against their colleagues’ performance. If other people have performed better in relation to their objectives then you may have to revise your initial assessment and downgrade it from ‘exceeds expectations’ to ‘meets expectations’. Organisations using such systems provide guidance for line managers but there are a few things to bear in mind if you have disabled employees working for you:

•       If you are ranking people who work for you, check whether you have placed all the disabled people in the lower bands. This might be unconscious bias on your part. If disabled people who work differently with reasonable adjustments are as productive as other members of the team or meet their objectives they should not be ranked lower than similar non-disabled members of your team.

•       If the reason disabled people are in the lower bands is because they don’t display certain organisational behaviours check whether this is because of their disability. If it is, it would be a reasonable adjustment to discount the behavioural requirements and to reassess the person.

•       If the reason is that the disabled people are less productive than non-disabled colleagues but you have agreed to accept lower targets as a reasonable adjustment then this too should be discounted when assessing the person.

Grievances

Employees can raise a grievance with their employer if they have concerns, problems or complaints you haven’t been able to resolve informally during your regular review meetings. Grievances may be raised if the employee:

•       Is unhappy with their performance appraisal.

•       Believes they are being discriminated against.

•       Believes they are being harassed or bullied. The grievance may be directed against colleagues or their line manager.

Disciplinary or capability proceedings

Some organisations may instigate disciplinary proceedings against an employee for poor performance, but others use disciplinary proceedings only for misconduct cases and instigate capability proceedings to try to improve performance.

Circumstances in which you may decide to instigate disciplinary or capability proceedings can include:

•       Failure to follow procedures, e.g. reporting sickness absences.

•       Breach of policies, e.g. internet or email policies or drug and alcohol policies.

•       Suspected illegal activity, e.g. theft or fraud.

•       Allegations of harassment or bullying or other inappropriate workplace behaviour.

•       Persistent failure to meet targets or objectives.

•       Poor attendance.

Your organisation should have policies for dealing with capability, disciplinary and grievance procedures including the basic principles that:

•       Issues raised will be dealt with promptly, meetings and decisions should not be delayed unreasonably.

•       Investigations will be conducted to establish the facts.

•       Employees will be given the opportunity to present their case fully before any decisions are made.

•       Employees will be allowed to be accompanied at meetings.

•       Employees will have the right to appeal against any decision.

Procedure

You must ensure grievance, disciplinary and capability procedures are accessible to disabled employees. This means documents must be available in alternative formats such as large print, Easy Read or electronically if necessary. If there is delay in producing these then time limits will need to be extended. A disabled person might also need longer to prepare for the meeting, particularly if they have problems concentrating or if they are reading documentation in an alternative format or having it read out loud to them. It would be a reasonable adjustment in these circumstances too to extend the time periods to accommodate this, ensure that readers, advocates, sign language or other interpreters are available if they are needed. These are important meetings that can have a significant impact on an employee’s career and so every step must be taken to ensure they understand what is being said and to present their own case.

Many employers say employees can only be accompanied by a colleague or a trade union representative at meetings, however if a disabled employee needs to be accompanied by someone else as a reasonable adjustment, for example a support worker or a counsellor, this must be allowed.

This is not an exhaustive list of the reasonable adjustments that might have to be made to the procedure, talk to the employee about the procedure and explain what will happen and what they need to do and then ask if any aspect of the procedure might place them at a disadvantage, if it does, you need to discuss ways in which disadvantage can be removed or minimised by making reasonable changes to procedure.

Investigation

During your investigations you may discover the employee’s grievance, or the reasons for the disciplinary or capability proceedings, is related to the person’s disability, in these cases you need to find out how the conduct or performance was affected by the disability, for example:

•       An employee with a learning disability may not have had procedures and policies explained to them and so may not have known they were not following them.

•       An employee with a hearing or visual impairment or dyslexia may not have been able to access the policies or procedures because they are in inaccessible formats, e.g. DVDs without subtitles or policies in electronic format that don’t work with adaptive software such as screen readers.

•       An employee with a learning disability, autism or Asperger’s syndrome might not have understood that their behaviour was inappropriate in the workplace or even illegal.

•       An employee who has not had the reasonable adjustments they need, e.g. adaptive software to help them read documents, may not have been able to meet their targets.

 It could be that neither you nor the employee is aware they have a disability when disciplinary, capability or grievance procedures are started. The possibility they might have a disability may emerge during the investigation, in these cases you should suspend the proceedings until you have obtained more information from appropriately qualified experts such as an occupational health adviser, if the reason for poor performance or misconduct is disability related you will need to decide, together with your colleagues, whether you should continue with the proceedings or if they should be suspended in the light of this new information:

• You can take disciplinary or capability proceedings against a disabled employee if the reason for misconduct is related to the person’s disability you will need to think about the circumstances and the severity of the conduct in question.

If this is the first instance of the behaviour then you may decide:

•       No warnings are appropriate because the person did not understand the nature or effect of their behaviour.

•       Some penalty is needed because of the nature of the conduct and the effect on other people; but rather than impose the penalty usually applied in such situations (for example, dismissal or a final written warning) a lesser action is appropriate (such as deciding to substitute a written warning for a final written warning, combined with an undertaking from the employee to apologise to colleagues).

•       In exceptional cases you may have no option but to treat the situation as gross misconduct and to dismiss the employee. This might be because the employee has already been warned about their behaviour and steps have been taken to help them avoid behaving in such a way again, e.g. a workplace mentor or buddy to help someone understand what might be interpreted as unacceptable harassment, or anger management training for someone who loses their temper with colleagues.

•       If targets or objectives have not been achieved because reasonable adjustments were not identified and/or implemented you should not continue disciplinary or capability proceedings, or uphold the employee’s grievance if they raised one. You must take steps to implement the adjustments as quickly as possible. If there is a dispute about what adjustments may be reasonable, meetings perhaps with a mediator or external facilitator, may help. At such a meeting all the adjustments and the objections can be explored until agreement on what is reasonable is achieved and then the adjustments must be implemented, the proceedings are not related to the person’s disability.

Disabled workers have been under increasing pressure in the workplace due to sickness absence and performance management procedures which take no account of the impact a disability may have if employers do not take appropriate steps to mitigate any disadvantage try to take every step to make your organisation disability confident.