UNISON Scotland Disability Leave Briefing

The Disability Leave Scheme is a proposal being prepared by the Scottish Disabled Members' Committee and the Equalities Policy Pool to establish a separate policy with employers that is integral to sick leave schemes and absence management policies.

Many employers operate sickness absence monitoring policies. These usually require employees who record a certain number of sickness absences within a set period to attend a monitoring interview.

Disabled members may have cause to be absent from work for disability-related reasons. These include absences for consultant's appointments, physiotherapy, hearing aid adjustments/replacements etc. Absences caused by illnesses related to the member's impairment are rarely included in absence management schemes. The majority of employers require the employee to take either annual leave or self-declare themselves sick for these absences. Consequently the disabled employee will be required to attend more sickness absence monitoring interviews in comparison with the non-disabled employee.

This means disabled employees are more likely to be retired on medical grounds because they apparently have bad sickness records or even be disciplined on capability grounds for frequent intermittent absences.

A subtle impression is created in the minds of employers that disabled people are more likely to be absent from work through sickness than non-disabled people. Therefore employers are less likely to employ disabled persons through an incorrect perception that disabled people are likely to be less productive than non-disabled people.

What is disability leave?

Disability Leave is a system that the Disability Discrimination Act 1995 sees as a reasonable adjustment for a disabled employee. The DDA uses Disability Leave as an example of a reasonable adjustment. At the point where a disabled person is employed – or when an existing employee becomes disabled – the employer, with the appropriate representative, meets with the disabled person and jointly agrees an estimated annual total of days required for disability-related absences. Thereafter when the disabled employee is off work for a disability-related purpose, rather than completing a self-certification sickness absence form the employee completes a Disability Leave form.

At the end of the 12 month period (or earlier if it becomes apparent that the initial estimate was insufficient) both parties meet again to evaluate the system and decide whether the initial estimate was too high or too low, and amend the agreed amount accordingly for the next year.

The disabled employee would continue to record sickness absences for non-impairment related reasons in the same way as non-disabled employees.

Benefits of a disability leave policy:

In the first instance branches should raise the matter with their employers by asking what provisions they have made under absence management policies for disabled employees in respect of making reasonable adjustments under the DDA. The Scottish Disabled Members' Committee established a working group to put together a model policy, accompanied by a negotiatiors' pack (attached).

Disability Rights Commission

UNISON Scottish Disabled Members Committee

Set up a Working Group (if not already established)
Conduct a confidential survey of members to establish a workforce profile
Consider benefits to the organisation, including partnerships.
Make links with and talk to specialist organisations such as the Disability Rights Commission, Disability Service Team at the local Job Centre, and the Scottish Disabled Members Committee.
Consult widely – take advice from those who have already done it.
Make your claim
Agree a policy that includes Disability Leave
Agree a time-scale for implementation
Publicise widely
Ensure the Working Group monitors the policy
Ensure union involvement
Involve members affected with the working group
Continue to review, evaluate and build in on-going union involvement.

Any scheme is open to abuse. But a properly designed scheme, managed locally, with trade union involvement should prevent abuses.

The purpose of any policy which addresses equality issues is to ensure equal treatment not preferential treatment.

Disabled people are much more likely to be penalised under an Absence Management Policy than non-disabled people.

Cost can be clearly identified as the number of days required for disability leave is negotiated in advance.

The risk of early retirement on medical grounds is thereby reduced – a process which can be very expensive for an employer. The employer benefits by retaining the skills and expertise of that employee, as well as a financial saving on recruitment and training costs. It also helps the employer plan ahead.

A well-thought out Disability Leave Policy can avoid expensive litigation by fulfilling the employer's obligation under the DDA to make reasonable adjustments and consult with the employee. It is a mechanism for identifying potential problems at an early stage and working together towards a mutually acceptable solution.

_________________(Employers Name) is committed to encouraging the recruitment and retention of disabled people in the workplace. We recognise the valuable contribution they make and are committed to ensuring that their continuing employment is based on equal treatment with all other staff.

__________________ (Employer's name) recognises that disabled members of staff may have cause to be absent from work for disability-related reasons. These may include (but are not limited to) absences for consultant's appointments, physiotherapy, hearing aid adjustments/replacements.

__________________ (Employer's name) also recognises that disabled members of staff may have cause to be absent from work on an irregular and unpredictable basis due to impairment caused by their disability. This may be due to (but is not limited to) chronic fatigue and adjustment to new medication, for example.

We recognise, therefore, that in both these circumstances the application of the usual Absence Management Policy will not be appropriate. This scheme aims to correct that and supplement it with specific provisions for Disability Leave.

N.B. Any employee who wishes to make use of the scheme or make claims under the Disability Discrimination Act (1995) (DDA) must self-identify as disabled to their employer and /or UNISON Branch.

The Disability Discrimination Act imposes a duty on employers to make "reasonable adjustments". Specifically, Section 6 (1)(a) and (2)(f), which states, it is the duty of the employer to make adjustments by allowing him/her to be absent during working hours for rehabilitation, assessment or treatment.

In line with the provisions of the DDA, ____________________ (Employers name) accepts that Disability Leave is a system that is a reasonable adjustment.

The scheme will apply to all existing disabled employees, at the point where a disabled person becomes employed and where an existing employee becomes disabled.

Each year the employee and the employer's representative will meet to assess an estimated annual total of days required for disability-related absences. When making this assessment, previous disability-related absences will be taken into account but will not provide either a floor or a ceiling for the current year's estimation. Instead, both parties will also take into account any improvement or deterioration, actual or anticipated, in the employee's condition and come to a conclusion on a suitable amount of disability leave. [Appeals procedure?}

Thereafter, when the disabled employee is off work for a disability-related purpose, whether it is for a prior appointment or an unpredicted absence on impairment grounds, they will complete a Disability Leave form. If the absence is impairment-related, this will be indicated on the form.

At the end of the 12-month period (or earlier if it becomes apparent that the initial estimate is insufficient), both parties will meet again to evaluate the system. If the initial assessment was too high or too low, both parties will amend the agreed amount accordingly for the next year.

The disabled employee will continue to record sickness absences for non-impairment-related reasons in the same way as non-disabled employees.