Negotiating the distinct pitfalls of disability discrimination in the management of performance

Keeping on top of employee performance is an essential factor in the monitoring of business effectiveness and productivity in all sectors. While exceptional performance is celebrated through appraisal mechanisms, poor performance provides a potentially valid and fair reason for termination of employment in the context of unfair dismissal.

Employees can challenge a dismissal, or attempted dismissal, carried out ostensibly on the grounds of poor performance under the Equality Act 2010 (“the Act”). The Employment Act 2025 will next year end the current two-year service requirement for unfair dismissal, but challenging a dismissal as discriminatory has always been open to employees from “day one”; compensation, in such claims when they are successful, has never been capped by statute.

The different “protected characteristics” listed in section 9 of the Act, for example race, sexual orientation, or gender, might be raised to explain poor performance. It is easy to imagine how sexual harassment, or homophobic or racial abuse could impact performance.

However, disability discrimination is typically the most likely form of discrimination to be raised.  As it is a protected characteristic, it has a wider possible application than the others because of certain forms of claim that only arise in connection with it. Specifically:

• Performance measurement metrics are a “provision criterion or practice” (“PCP”) within the meaning of section 20 of the Act, and employers must ensure that any PCP is amenable to any reasonable adjustment to remove disadvantage caused to an employee by a PCP because of their disability.
• Dismissal or disciplinary sanction on the basis of results of unadjusted performance management metrics can, depending on the facts, be unfavourable treatment “because of something arising in consequence of” an employee’s disability.

Employees who are contextualising issues of performance by reference to a disability issue should make their employer aware of any medium- or long-term illness or condition (something that has lasted or is likely to last 12 months). Claims involving unfavourable treatment or reasonable adjustment failures will not succeed unless this has happened. It is sufficient for an employee to do this only after the performance issue has emerged. Not all adjustments requested or suggested by an employee or their representative will be reasonable, and the adjustments expected of the employer are dependent in part on its resources and size. In the case of alleged unfavourable treatment, employers have the additional option, in the event of a claim, of arguing that even if there has been unfavourable treatment, it was justifiable because they were proportionately pursuing a legitimate aim.

To avoid (or at least reduce the risk of) performance dismissal being successfully challenged in the Employment Tribunal on the grounds of disability, employers need to maximise the effectiveness of performance measurement and capacity review procedures to ensure they are as claim-proof as possible. For example, at every stage the employee should have the opportunity to have their possible disability and health-related concerns taken into consideration. Any additional cost arising from building in such a review is likely to be dwarfed by the financial, reputational, and time-resource deficits that arise from a claim in the Employment Tribunal, even where unsuccessful.

If you have questions or concerns about disability discrimination claims, please contact Mike Cain.