Q&As

Where an employee performs poorly as a result of a disability, would it be unlawful to award them a poor rating in their assessment (with the knock on effect of them not being awarded a salary increase), and, if so, what approach should an employer take in relation to the employee’s performance review, particularly if reasonable adjustments have already been implemented temporarily to reduce the employee’s duties?

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Published on LexisPSL on 07/05/2019

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • Where an employee performs poorly as a result of a disability, would it be unlawful to award them a poor rating in their assessment (with the knock on effect of them not being awarded a salary increase), and, if so, what approach should an employer take in relation to the employee’s performance review, particularly if reasonable adjustments have already been implemented temporarily to reduce the employee’s duties?

It is likely that consideration will need to be given, in these circumstances, to the employer’s duty to make reasonable adjustments, and the possibility of a claim for discrimination arising from a disability.

In relation to the duty to make reasonable adjustments, where a provision, criterion or practice (PCP) applied by the employer places a person who has a disability (as defined by section 6 of the Equality Act 2010 (EqA 2010)) at a substantial disadvantage compared with persons who are not disabled, then the employer is under a duty to take such steps as it is reasonable to have to take to avoid the disadvantage. A failure to comply with the duty to make reasonable adjustments constitutes discrimination.

The application of performance criteria and methods for assessing performance in the context of a salary review are likely to amount to a PCP, which means that in relation to the performance appraisal process and the criteria for determining an employee’s performance rating for salary review purposes, the employer may have to consider whether it is under a duty to make reasonable adjustments, and if so, what steps would be reasonable to have to take.

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