Disability Leave

Disability leave: How does it differ from sickness absence?

Overview

Disability leave is planned or unplanned time off from work for a reason related to someone’s disability. It is a type of ‘reasonable adjustment’ which disabled workers may be entitled to under the Equality Act 2010.

The Equality Act 2010 requires employers to make reasonable adjustments to the workplace to overcome the barriers disabled workers face. Disability Leave is listed as an example of a reasonable adjustment in the Code that accompanies the Act.

Equality Act: key points

There are also many types of disability that can be covered by law, where ‘disability’ is defined under the Equality Act 2010 as ‘any physical or mental impairment with a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities’.

The expression ‘substantial’ means something more than minor or trivial, for example, where it takes far longer than usual to do daily tasks, while ‘long-term’ refers to a period of 12 months or more, or is likely to last for at least this long.

It is against the law to discriminate against anyone because of:

• age
• gender reassignment
• being married or in a civil partnership
• being pregnant or on maternity leave
• disability
• race including colour, nationality, ethnic or national origin
• religion or belief
• sex
• sexual orientation

See our article on The Equality Act

Disability under The Act

The Equality Act gives disabled workers the right to reasonable adjustments, which can include disability leave.

An employer is not under an obligation to make reasonable adjustments if they are not aware that an individual is disabled. The employer is responsible for safeguarding the health of workers and has a duty of care. They must make reasonable adjustments when they know or should have known that the worker is disabled and where that worker is disadvantaged.

Therefore it is best to ensure employees plan with their employer to allow them opportunity to make and plan for reasonable adjustments. Single one off requests may get a standard policy response whereas requests as part of a planned and documented disability employment plan will allow for a smoother, considered and appropriate response.

Disability leave and sickness absence

Where someone suffers from an ongoing illness or injury that amounts to a disability, aside from any disability-related sick leave, they may need to take time off work for a variety of reasons, from attending clinic appointments to undergoing treatment or therapy, or to cope with treatment side-effects. 

Disability leave is distinct from sick leave, where disability leave usually refers to time off work for planned or known disability-related reasons, while sick leave is because the employee is too unwell to work.

Disability leave should always be recorded by the employer separately from any sick leave. This is to avoid any unfair treatment arising because of this. For example, where an absence review is triggered once an employee reaches a certain number of absences, disability leave for things like treatment and rehabilitation should be entirely discounted from any trigger calculations.

The level of pay for disability leave will depend on the employee’s contract of employment. Employers are under a statutory duty to provide reasonable adjustments, including considering paid time off for disability-related treatment, rehabilitation and assessments. This does not mean they will pay staff for appointment times.

Examples of reasonable adjustments

Disability leave can include the following, but this is not an exhaustive list and each worker’s needs should be looked at individually:

• Time off for Hospital and GP appointments; 
• Rehabilitation training for a newly disabled worker learning to manage a condition; 
• Cancer treatment and rehabilitation; 
• Waiting for the employer to make reasonable adjustments; 
• Assessment for conditions such as dyslexia and hearing aid tests; 
• Counselling for a mental health problem; 
• Period of sickness related to disability; 
• Training with a Guide Dog or other assistance dog; 
• Attendance at medical assessments for in-work benefits.

See our article here on implementing reasonable adjustments.

Disability Leave Policy

Check to see if the school has a disability leave policy in place. The policy may explicitly discount non sickness-related absences by reason of a disability from any workplace policies or practices. This would therefore be classed as a reasonable adjustment under the Equality Act 2010. The policy may also extend to disability-related sick leave.

It is likely that each absence request will be assessed on its own merits, taking into account the individual needs of each employee. It is best to work with the employer ensuring they are fully aware of the symptoms of the condition and how it fits the criteria of disability. Occupational Health referrals and appointments can aid the discussions around reasonable discussions and may suggest whether a condition will likely fit the disability criteria.