Imagine this scenario.

You’ve noticed that one of your long-serving employees is struggling to perform their day to day duties.

There have been a few times when they have become very anxious and suffered from panic attacks. In particular, you have seen some significant differences in the way that they interact with their colleagues and approach tasks. How do you manage the situation to get their performance back up to the required level?

Here’s what you should do.

These types of issues should typically be dealt with in accordance with your performance management/capability procedure. However, before you start this procedure, since there does seem to be a change in behaviour and reference to panic attacks, you need to consider whether the performance issues are related to a medical condition which could amount to a disability and, if so, what reasonable adjustments can be made. If you do just commence your formal performance management procedure without investigating this further, you leave yourself vulnerable to an Employment Tribunal claim.

Remember that under the Equality Act, a worker will be considered disabled under the Act if they can show that they suffer from a long term (i.e. 12 months or more) physical or mental impairment which has a substantial (i.e. more than trivial) effect on their ability to carry out day-to-day activities.

A person will automatically meet the disability definition under the Equality Act 2010 if they have HIV, cancer or multiple sclerosis, but if they suffer from stress, anxiety or depression, they may also be considered disabled for the purposes of the Act.

In this case, if the employee can show that the effect of their anxiety and panic attacks has lasted at least 12 months, is likely to last for at least 12 months, or is likely to last for the rest of their life and it has a significant adverse impact on the way they carry out daily tasks, such as affecting personal relationships with others or being able to concentrate on tasks, they may meet the definition of disabled under the Equality Act.

If this is the case, you need to think about what reasonable adjustments you can put in place. For example, if the employee has said they are anxious about working in an open place office and this is affecting their ability to concentrate and focus on tasks, you could consider giving them a private office or providing a walled partition. If they have been off work for some time, you could agree on a phased return to work to get the employee back into work. The level of workload may also be an issue to look at.

If you have made all the reasonable adjustments and their performance still does not meet the required standards, you should initiate your performance management/capability procedure, although care would still have to be taken. If the poor performance arises because of something connected to the disability, then it will be necessary to show that the action taken is a proportionate means of achieving a legitimate aim.

Performance management is a complex area, particularly when medical conditions adversely affect performance, therefore we would urge you to seek legal advice at the earliest opportunity.

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