“Hey Joel, can I discipline my employee even though they have a disability?”
Hmm...sensitive question. But a question I get a lot as an HR advisor to Beneplan members.
Given the sheer volume (you'd be surprised!), I figured it's probably a good idea to share my approach as disciplining an employee with a disability does require a pair of white gloves and you need to exercise extra care and consideration.
However it is not something that an employer should shy away from especially if discipling is warranted based on the circumstances.
Here are some of my best practices:
- Firstly, after any incident, the employer should conduct a full investigation to 1) establish the circumstances 2) determine if the behaviour or event has occurred before and 3) if any coaching or corrective action was offered previously to the employee.
- Analyze the facts and decide whether what has occurred is related in any way to the disability. Part of that analysis should be to interview the employee and any witnesses about what happened.
- During this time, the employee in question may inform the employer that their conduct was caused by a disability - however, they may not. It’s the employer’s responsibility to ask questions and determine whether there’s a disability at play.
- If the employer determines that the conduct was caused by a disability, then disciplining the worker carries a risk of a human right complaint or, in the unionized sector, a grievance.
- Once it is determined that a disability has caused the lapse or behaviour in question, the employer must consider whether they are required to accommodate the employee’ disability.
- As applicable and as appropriate, refer the employee to your company sponsored Employee and Family Assistance program (EFAP), and additional counselling. It is important to conduct regular follow up to assess progress. Record these instances.
- HR and management also needs to assess what accommodations may be necessary in each individual case, based on the specific circumstances. Also determine what accommodations your company can offer "to a point of undue hardship". This does not at all mean the employer is forbidden from addressing the conduct with the employee. It is well within their rights to do so.
- Ideally a coaching conversation, accompanied by a formal reprimand letter clearly stating that the behaviour in question is not to happen again should be provided to the employee. The letter should also include what the employer will do to support the employee and their disability and the availability of accommodation if necessary.
The risk of disciplining the employee without the above steps, and before fully understanding the facts of the case, including the nature of the disability, and considering their duty to accommodate, can potentially result in a Human Rights complaint.
If it is established that the conduct is not as a result of any disability – then of course the employer can proceed with progressive discipline or termination (depending on circumstances) without worry.
Need more help and guidance?
If you’d like to discuss or get additional guidance on this topic, or any other HR matter, you can call the complimentary HR Advice helpline provided by Beneplan for its members. As a Beneplan client you also have access to resources available to you under the “HR Toolkit” section of our member portal of our website, once you log in.