Being downgraded at appraisal because I've been off sick. Is this legal?

[Nacknick]

I've recently returned to work at the start of our new appraisal year after being off for a number of months due to a chronic health condition.
At my appraisal I was told that I would be downgraded by one grade because I'd been off sick for so long. Is this legal? It sounds like a breach of the DDA to me but I don't know how to challenge it.
The downgrading is the difference between 'meeting expectations' and not so I'm worried they're trying to find a way to get rid of me...

[OddBoots]

Is your condition something likely to meet the definition of disability under the equality act (There is extensive guidance here if you aren't sure)?

[Nacknick]

Yes it does meet the definition of disability

[user1496778897]

It's possibly lawful - yes.

If you were off sick and couldn't exceed expectations because of your absence, that's just unfortunate...the way it is.

If you didn't exceed expectations because you were off sick...do you expect the company to tell you that you that you had exceeded your objectives? Of course not...that wouldn't be an accurate assessment of your performance.

It's a shame you couldn't exceed your objectives because of illness...but there's no obligation on your employer to consider that you had exceeded objectives when you hadn't, even if you're afforded protection under the Equality Act.

However...what you could try is asking your boss to review your objectives and make an adjustment to them based on the time you were in work.

Worth a go!

[NotCitrus]

Sounds more like OP expected to be "meeting expectations" but has been graded as "not meeting expectations"?

Yes it's legal (according to my union when it happened to me), but may be the best option.

I was given the choice between procedures for inadequate attendance (aka being off sick too much), or be appraised as if I'd been there in which case I clearly hadn't met half my objectives. My boss tried to review my objectives and make an adjustment to them based on the time I was in work, but wasn't allowed to take that into account (as if they did, I'd have inadequate attendance)

So while it sucked to be told I wasn't meeting expectations (mainly because of failure to make reasonable adjustments for disability, but very hard to prove), it was better than formal procedures because anyone undergoing those wasn't eligible for redundancy deals, there's loads of paperwork, and the pay rise I missed out on would have been about £10 a year.

[Spickle]

This happened to my husband when he was off sick for a lengthy time battling leukaemia. It was a long time ago but I admit that it did lead to the company trying to get rid of him. He had been a good employee for many years without any significant absences so it came as a shock to realise that rather than risk him "dying in service" and having to pay out significant sums of money, they would manipulate appraisals to add evidence to their proposal of letting him go - along with his job "no longer existing" after a re-shuffle while he was absent.
Hopefully rules have changed somewhat now.

[Nacknick]

Thanks for your comments. It's interesting and sad to hear other people's experiences and I thought I'd provide an update as I've now spoken to a lawyer through my workplace confidential advice programme.

They confirmed that as the sickness was due to my disability (which is covered under the equality act) and the downgrading was reportedly due to my sickness absence it is discriminatory to downgrade me.

All I'm asking is that my performance grading reflects the time I was able to work - and my objectives in my opinion are such that they could be measured over a shorter period of time (e.g. Did I demonstrate the ability to communicate effectively over the 6 month period etc)

Interesting to hear other thoughts and experiences. I will update if I manage to challenge it.

[user1496778897]

"All I'm asking is that my performance grading reflects the time I was able to work - and my objectives in my opinion are such that they could be measured over a shorter period of time (e.g. Did I demonstrate the ability to communicate effectively over the 6 month period etc)"

I think that's reasonable.

You say you don't know how to challenge it....

Some appraisal processes give you the option to appeal...others don't.

If not, an option would be to raise a formal grievance...or threaten one. I'd put it in writing (email to your boss is fine). You could tell your manager that you are afforded protection under the Equality Act which means that they have a legal duty to consider reasonable adjustments. Then ask them to review your score based on your performance when you were well and in work. You could tell them that you're keen to get this resolved informally, however, if it isn't resolved to your satisfaction, you may need to escalate this in line with formal procedure.

I think it's worth a go...x

[Nacknick]

Success! I emailed my manager to say that I didn't think it was right that they downgrade me because I was off sick - and explained that I believed it was discriminatory under the equality act - and she's agreed that I be given a 'meets expectations' to reflect the period that I was able to work!

Thanks for your comments and support x

[2014newme]

Well done. Shows a direct but polite approach works.