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SICKNESS DURING PROBATIONARY PERIOD

May the absence of an employee from work during probationary period due to health condition amount to disability discrimination?

Probationary periods usually allow the employer to assess the performance, conduct and attendance of a new employee. The purpose is to evaluate at the end of the probationary period whether or not the employee is suitable for the role. In those cases, where the employee has to be absent from work due to pre-existing health conditions, the illness will constitute disability discrimination?

The recruitment process
An employee is not legally obliged to inform the employer of a health condition during the interview, even though he has filled out an application form to attend the interview. Information in relation to previous absences from work do not have to be mentioned in references, if not expressly required.

The probationary period
When discussing the probationary period, the employer may try to discover the future impact of health conditions on the job. The employer will set performance objects and targets to achieve during the period in question. In the presence of a pre-existing illness it will likely affect the work and its duties. Therefore, it could constitute a disability.

Seeking Medical Advice
After obtaining a medical report in relation to the health conditions, employer and employee should be able to discuss reasonable adjustments to the role. Probationary reviews will help the management of the reasonable adjustments. If the employee is absent from work at a high level, the probationary period may be extended in order to gain the best awareness in regard of his real performance.

Reasonable adjustments
The employee may change the hours of work so that the employee is allowed to attend medical appointments. Adjustment in the role itself may be required. The employer may provide more support and training to the employee. Furthermore, the employer may simply ask the employee what he considers to be the best reasonable adjustments to the role.

Avoiding a potential tribunal claim
In those circumstances where the employer can show to have adopted all the reasonable adjustments available and that the level of absences from work remain high, the employment relationship may come to an end. If the employer shows that he has done everything possible to enable the employee to perform in the role despite the health condition (Disability Discrimination Act) and provides all documentation (probationary reviews), there is no remedy for the end of the employment relationship.

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