Grievance Appeals and Disability: What Employers Get Wrong

Disability discrimination is one of the most common grounds cited in employment tribunal claims in the UK. It is also one of the areas where employers most consistently make avoidable mistakes during grievance and appeal processes. Those mistakes are rarely deliberate. They tend to result from a combination of limited HR resource, incomplete understanding of the legal framework, and a tendency to treat disability-related grievances as ordinary employee relations matters when they are anything but.

This post sets out the most significant errors employers make when handling grievance appeals that involve disability, reasonable adjustments, or related matters - and what good practice actually looks like.

The legal framework: a brief reminder

Under the Equality Act 2010, disability is a protected characteristic. An employer has a duty to make reasonable adjustments where a provision, criterion, or practice applied by the employer puts a disabled person at a substantial disadvantage compared to a non-disabled person. This duty is anticipatory as well as reactive - employers are expected to think ahead, not just respond when a problem is raised.

A grievance that touches on disability may involve a failure to make reasonable adjustments, direct discrimination, discrimination arising from disability, or harassment related to disability. These are distinct legal concepts and a grievance appeal chair needs to understand the difference, because the analysis required for each is different.

What this means in practice is that a grievance appeal involving disability is not simply a matter of reviewing whether the original process was procedurally sound. It requires an assessment of whether the substantive decisions made by the employer - about adjustments, about workload, about working arrangements, about how the employee was treated - were lawful as well as reasonable.

Mistake one: treating the disability as background noise

One of the most common errors in grievance appeals involving disability is acknowledging that the employee has a health condition without actually engaging with what that means for the employer's obligations.

Appeal chairs and managers sometimes approach these cases with a kind of procedural tunnel vision. They focus on whether the original grievance was investigated properly, whether the outcome letter was issued in time, whether the employee was given the right to appeal. These things matter. But they are not the whole picture.

If the grievance alleges that reasonable adjustments were not made, the appeal needs to grapple with that allegation directly. Was there a duty to make adjustments? What adjustments were sought or suggested? What steps did the employer take? Were those steps reasonable in the circumstances? These are substantive questions that require substantive answers, not procedural ones.

An appeal outcome that says the original process was fair without addressing whether the underlying decisions about adjustments were lawful is not a complete outcome. It is an outcome that leaves the employer exposed.

Mistake two: applying the wrong standard

The reasonable adjustments duty is not a best-efforts standard. It is a legal obligation. Whether a particular adjustment is reasonable depends on a range of factors including the size and resources of the employer, the effectiveness of the adjustment, the practicability of making it, and the cost involved. But the starting point is the duty, not the convenience of the business.

Employers sometimes treat requests for adjustments as unreasonable because they are inconvenient, because they require a change to existing working practices, or because other employees do not have the same arrangements. None of these are valid reasons for refusing an adjustment if the adjustment itself would be reasonable and effective.

In a grievance appeal context, this means the chair needs to assess not just what the employer did but whether what they did was enough. Did the employer obtain occupational health advice? Did they engage with the employee's GP recommendations? Did they consider a phased return, amended hours, or a change to duties? Did they document their reasoning?

The absence of a structured process for considering adjustments is itself a finding. It suggests the employer did not take the duty seriously.

Mistake three: conflating capability with disability

Another common error is treating a disability-related absence or performance issue as a straightforward capability matter without considering the discrimination dimension.

An employee with a disability who is absent frequently, who is struggling to meet performance targets, or whose conduct has been affected by their condition is not simply a capability or conduct case. The employer needs to ask whether the capability or conduct issues are related to the disability, and if so, what adjustments might address them before any formal action is taken.

If a grievance has been raised in the context of a capability or performance process, and the appeal involves disability, the chair needs to consider both threads. Was the capability process itself discriminatory? Were adjustments considered before targets were set or action was taken? Was the employee given a fair opportunity to demonstrate what they could do with appropriate support in place?

These are not easy questions, but they are the right questions. An appeal that does not ask them is not doing its job.

Mistake four: the inadequate outcome letter

In disability-related grievance appeals, the written outcome is particularly important. If the matter proceeds to tribunal, the outcome letter will be disclosed and examined. An employment judge will read it and assess whether the employer engaged seriously with the disability-related grounds.

A letter that dismisses disability-related grounds in a sentence or two, without explaining the reasoning, will not withstand that scrutiny. Neither will a letter that acknowledges the employee's condition in passing but focuses entirely on procedural matters.

The outcome letter in a disability case needs to address the specific allegations made, explain what evidence was considered, set out the employer's position on each ground, and give coherent reasons for the conclusions reached. Where adjustments were considered and rejected, the reasons for rejection need to be explained. Where adjustments were not previously considered, the outcome may need to acknowledge that and set out what steps will now be taken.

This is not about writing a legal document. It is about demonstrating that the employer took the matter seriously, engaged with the substance of the complaint, and reached conclusions that are capable of rational explanation.

Mistake five: failing to consider what happens next

A grievance appeal outcome is not the end of the employer's obligations. Where a grievance has identified that adjustments were not made, or were inadequate, the outcome should set out what steps the employer will take going forward.

This matters for two reasons. First, it demonstrates good faith and a genuine commitment to addressing the employee's concerns, which may reduce the likelihood of tribunal proceedings. Second, it creates a documented record of the employer's intentions, which is relevant if the employee later alleges that the employer continued to fail in its obligations after the appeal.

An appeal outcome that upholds a disability-related ground but says nothing about remedial action is incomplete. An appeal outcome that dismisses all grounds but says nothing about ongoing adjustments may be missing an opportunity to resolve matters without further escalation.

What good practice looks like

Good practice in a grievance appeal involving disability starts with appointing a chair who understands the legal framework and is not simply assessing procedural compliance.

It involves a thorough review of all relevant documents including any occupational health reports, medical certificates, correspondence about adjustments, and records of meetings where the employee's health was discussed.

It requires a hearing at which the employee has a genuine opportunity to explain their experience and the impact of the employer's decisions on them. The chair should listen carefully and ask questions that get to the substance of the allegations, not just the procedural history.

And it requires a written outcome that addresses each ground properly, explains the reasoning, and sets out a clear position on the employer's obligations going forward.

None of this is beyond the reach of a small or growing organisation. But it does require taking the process seriously and, where internal resource is limited, bringing in someone with the experience to do it properly.

The alternative - an appeal that goes through the motions without engaging with the substance - is not neutral. It is a risk. And in disability cases, it is a risk that employment tribunals are well placed to identify and respond to accordingly.