This page gives possible examples of reasonable adjustments by employers in relation to speech therapy and courses to help stammering, or self-help meetings. It also looks at issues on disability-related absences. For background, and examples of reasonable adjustments in the jobmore generally, see Examples of reasonable adjustments: In the job.
Time off
What adjustments are reasonable will depend on the circumstances. Also, though, an employer may be willing to go beyond what is legally required.
There have been instances where employers have given paid time off for a speech therapy course, or other stammering course:
An employee was granted paid time off for an intensive stammering therapy course totalling 3 weeks. This was two weeks followed by a period at work, then a final week.
One employee was given paid time off for a stammering course requiring a two day absence, after instigating the employer’s grievance procedure. The employee argued it would be a reasonable adjustment as his job description included using verbal communication skills.
See ‘Time off work for stammering course’
It might also be reasonable to allow leave (paid or unpaid) for regular speech therapy sessions. Some also find self-help group meetings very beneficial and time off might be reasonable to attend those, or a British Stammering Association conference or Open Day.
See below Excessive sick leave? as to how far the Equality Act may require disability-related absences to be discounted when it comes to an employer’s procedures for excessive sickness absence.
As an alternative to trying to use the Equality Act to get time off for therapy, a person who stammers could ask his GP for a note saying he needs time off for ‘treatment’. However, letting the employer know it is for stammering may help in having it treated more favourably than general sick leave: again see below Excessive sick leave?.
“It’s fine if you stammer”
After an employee had told her manager how her speech therapy course went, her manager said: “It’s very good that you did the course, but you don’t have to. It’s fine if you stammer.” The employee really appreciated this.
Employment Code on time off
Disabled workers may sometimes require time out during the working day to attend medical appointments or receive treatment related to their disability… If, for example, a worker needs to take a short period of time off each week over a period of several months it is likely to be reasonable to accommodate the time off.
Employment Code, para 17.23
An employer allows a person who has become disabled more time off work than would be allowed to non-disabled workers to enable him to have rehabilitation training. A similar adjustment may be appropriate if a disability worsens or if a disabled person needs occasional treatment anyway.
Employment Code, para 6.33. There is a similar example at para 17.24 of the Employment Code.
Below there are also examples in the Employment Code on disregarding disability-related absence.
Paying for a course
In some areas of the UK, speech therapy is available free under the NHS, but sometimes it is not. Or there may be other reasons to pay for a course (e.g. City Lit, McGuire Programme, Starfish Project, NLP courses) or for a private speech and language therapist.
Some employers have agreed to pay for speech therapy courses or other stammering courses/events. Employers may see is as part of the training they provide or fund. However, giving time off is more likely to be legally required as a reasonable adjustment than paying the cost.
In one example, the employer paid half the cost of a stammering course and the union paid the other half.
See ‘Time off work for stammering course’
An employee who stammers asked if he could go on a non-NHS speech therapy course, with the employer paying the fees. The course might help his personal development, and improve his performance at work. The employer agreed to pay the fees. However, it said he would need to use some annual leave, or time off in lieu, as the course was in office hours.
When the employer saw how the course helped, it also paid for him to go to the British Stammering Association conference. The employer saw it as like any other employee training – attending the conference would aid his personal development and he would learn new ways to improve his speech, attitude to stammering and confidence that would be beneficial in an employment situation.
‘A more than reasonable adjustment’ (archive of stammering.org), 2004.
For information on therapy and courses available, see the BSA website at stamma.org or contact their helpline.
Excessive sick leave?
Staff may be worried about being penalised for taking excessive sick leave for stammering treatment.
In particular, employers often have a procedure which is triggered if the employee takes more than a certain amount of sickness absence. Or sick leave may be taken into account when deciding who should be made redundant. How far as an employer required to discount disability-related absence, so that the employee is not penalised for it?
Personal development/ training
I know of an example where an employer classed a speech therapy course (for which the employer paid) as ‘personal development’. This took it out of the employer’s ‘sickness’ policy. The employee had identified it as a training need during an exercise to identify training needs for the team.
Discounting disability-related absence: Summary
We assume here that the employer does not treat the absence as personal development or training, and so discount it anyway.
Basically, an employee does not necessarily have a right for disability-related absence to be discounted. But:
- it may be a reasonable adjustment for an employer not to count such absence when considering possible adverse consequences of sickness absence; and
- the employer will generally need to be able to show objective justification for imposing adverse consequences because of absence which is disability-related.
Link: Sickness Absence and Disability Discrimination: A trade union negotiator’s guide to the law and good practice (pdf, tuc.org.uk)) – TUC
Discounting disability-related absence: More detail
This assumes the absence is not treated as ‘personal development’, ‘training’ or suchlike (see above), so as to be discounted anyway. By way of some general points:
- One should start with the particular organisation’s sickness policy. This may have particular provision where a ‘disability’ is involved.
- The Employment Code at para 17.19 says: “When taking attendance management action against a worker, employers should ensure that they do not discriminate because of a protected characteristic. In particular, it will often be appropriate to manage disability…-related absences differently from other types of absence. Recording the reasons for absences should assist that process.” Accordingly, it will make sense for employers to distinguish in their records between disability-related absences and general sickness absence.
- Treatment for stammering should generally qualify as disability-related. Where therapy is being sought, the stammer is particularly likely to be a ‘disability’, as its effects on normal day-to-day activities will usually be more than ‘minor or trivial’.
- An employee does not have a blanket right to have disability-related absence ignored. Even disability-related absences may have adverse consequences. However, such absences are subject to the protections of the Equality Act. Accordingly, they should not necessarily be dealt with in the same way as general sickness absences. In particular, where a disability is involved, an employer’s sickness policies can be subject to:
- the reasonable adjustment duty. Say under the policy a dismissal procedure is triggered by a certain amount of absence. It may be a reasonable adjustment for the employer to have to discount, at least to a certain extent, absence(s) caused by a disability (see Employment Code below)
; and - the rules on ‘discrimination arising from disability’ and ‘indirect discrimination’ under Equality Act 2010, where the issue will often be whether the employer can show its action was a proportionate means of achieving a legitimate aim (the objective justification defence).
- the reasonable adjustment duty. Say under the policy a dismissal procedure is triggered by a certain amount of absence. It may be a reasonable adjustment for the employer to have to discount, at least to a certain extent, absence(s) caused by a disability (see Employment Code below)
- See below on sick pay.
Note that ‘disability leave’, mentioned in para 6.33 of the Employment Code, is not a distinct concept under equality law. So it is not a term one should get too ‘hung up’ on. An employer might choose to give that name to paid disability absence which it does not count in its sickness policy. Or it might be a name given to a period of unpaid absence. But ‘disability leave’ is not a legal concept. It is a matter of applying the Equality Act rules – and, subject to legal requirements, the employer’s policies.
The 2013 decision of the Court of Justice of the European Union (CJEU) in Ring v Dansk almennyttigt Boligselskab (Sickness absence due to disability) is a useful reminder that a sickness absence policy can be ‘indirect discrimination’, and is not just subject to the reasonable adjustment duty or discrimintion arising from disability. For example, there will be the question whether the sickness absence policy goes beyond what is necessary to achieve the legitimate aim.
Employment Code and tribunal case examples on disregarding disability-related absence
Employment Code para 17.20 says “Employers are not automatically obliged to disregard all disability-related sickness absences, but they must disregard some or all of the absences by way of an adjustment if this is reasonable. If an employer takes action against a disabled worker for disability-related sickness absence, this may amount to discrimination arising from disability…”
A disabled worker periodically requires a limited amount of time off work to attend medical appointments related to the disability. The employer has an attendance management policy which results in potential warnings and ultimately dismissal if the worker’s absence exceeds 20 days in any 12-month period. A combination of the worker’s time off for disability-related medical appointments and general time off for sickness results in the worker consistently exceeding the 20 day limit by a few days. The worker receives a series of warnings and is eventually dismissed. This is likely to amount to disability discrimination.
Example in para 19.5 of the Employment Code
19.6 Based on the facts in the example above, it is very likely to have been a reasonable adjustment for the employer to ignore the absences arising out of the worker’s disability or increase the trigger points that would invoke the attendance policy. By making one or both of these adjustments, the employer could have avoided the possibility of claims for both a failure to make adjustments and discrimination arising from disability.
Employment Code, para 19.6
A call centre re-tenders for a large contract and has to reduce its price to secure the work in the face of low-cost competition from overseas. The employer therefore decides that attendance records are a particularly important selection criterion for redundancy. This has the potential to disadvantage disabled employees who require additional time off for medical treatment. It is likely to be a reasonable adjustment to discount some disability-related sickness absence when assessing attendance as part of the redundancy selection exercise.
Example in para 19.17 of the Employment Code
Because of his condition, a man with an autoimmune disease has taken several short periods of absence during the year. When his employer is taking the absences into account as a criterion for selecting people for redundancy, they discount these periods of disability-related absence.
Example in para 6.33 of the Employment Code
Examples of cases:
Lawton v Secretary of State for Work and Pensions (Jobcentre Plus) [2011] EqLR 229, Employment Tribunal
Jobcentre Plus had an attendance policy which was usually triggered on an absence of eight working days in a rolling 12 month period. The policy said this could be increased to take account of additional absences directly linked to a disability or underlying medical condition. Most of the claimant’s absences related to his disability. He argued that the employer had not discounted these sufficiently, and the employment tribunal agreed. The tribunal said that not discounting disability-related absences “effectively denied the claimant the full opportunity to have ordinary time off sick absence unconnected to his disability.”
Of course, the employer need only discount disability-related absences so far is it is reasonable for it to have do so.
Olusoga v Homerton University Hospital NHS Trust [2013] EqLR 190, Employment Tribunal
The employment tribunal found that the employer’s application of its managing sickness and attendance policy in relation to the claimant and disabled people generally was justified as a proportionate means of achieving a legitimate aim (the objective justification defence). The claimant was not entitled to have his disability absences excused from the policy. A reasonable adjustment claim similarly failed.
Jennings v Barts and The London NHS (link to bailii.org), 2013, Employment Appeal Tribunal (EAT)
The EAT upheld an employment tribunal decision which found that exempting a disabled worker from a short-term absence policy would not be a reasonable adjustment.
Summary: Play fair – long term absence (hempsons.co.uk).
After a course
After a stammering course the employer might ask the person who stammers if there is anything the employer can do to support them.
For example, one person who stammers asked a particular colleague to let her know if she lost eye contact.
Sick pay
(I say something about this despite the fact that it should not be of great relevance to stammering.)
Current indications are that courts will normally not hold that sick pay should be extended (or increased) because absence is disability-related. An exception is that extending sick pay may be a reasonable adjustment if the absence is caused by the employer failing to make reasonable adjustments. It remains to be seen whether Equality Act 2010 changes the position.
O’Hanlon v HMRC (link to bailii.org), 2007, Court of Appeal
The Court of Appeal said, “In our view, it will be a very rare case indeed where the adjustment said to be applicable here, that is merely giving higher sick pay than would be payable to a non-disabled person who in general does not suffer the same disability related absences, would be considered necessary as a reasonable adjustment…”. The court gave two reasons for this: see from para 67 of the judgment.
For a summary of the case: Sick note (thompsonstradeunion.law).
Nottinghamshire County Council v Meikle (link to bailii.org), [2004], Court of Appeal.
The claimant had requested reasonable adjustments which were not made. The reduction in sick pay flowed from this failure. Her claim for adjustment of sick pay succeeded. The Court of Appeal in the O’Hanlon case above (from para 70) endorsed the notion that Meikle was a different category of case, because the sickness absence was caused by a failure to make reasonable adjustments.
RBS v Ashton (link to bailii.org) Employment Appeal Tribunal (EAT), 2010
The employer had a policy of indefinite discretionary sick pay. The EAT considered that on the facts (unlike in O’Hanlon) the reasonable adjustment duty did not apply as there was no substantial disadvantage compared with other workers.
Even if RBS v Ashton is right, since Equality Act 2010 a claimant might now argue they were treated ‘unfavourably’ under s.15 EqA (discimination arising from disability), without the need for a comparision with other workers. The issue would then be whether the employer can show the objective justification defence applies. However, courts may still be reluctant to interfere given the Court of Appeal’s views in O’Hanlon.
