Special considerations

An employee who was previously a high performer in the workplace may find it incredibly difficult to accept that they are now an ‘average’ performer, or are struggling. They may not be able to understand how they are no longer able to reach the same standards that they had previously. They may want to ‘keep up appearances’ with their employer if they are not performing to their previous level. They may also feel embarrassed about their colleagues realising they are struggling and could therefore be reluctant to ask for help.

If a brain injured employee is struggling to deliver what is expected of them, this will need to be approached and managed very carefully. It may be that the working arrangement that has been agreed with the employer is too much of a stretch for the employee. Further adjustments to the employee’s working arrangements may be required, if these can be balanced with the needs of the business. If the adjustments appear to be appropriate but the employee is still struggling, the employer will need to try and support the employee in improving their performance, in a sensitive and appropriate way.

An employer should act proportionately when taking action which could be considered ‘unfavourable treatment’ of the brain injured employee, because of something arising as a result of the employee’s disability (section 15 of the Equality Act 2010). Any ‘unfavourable treatment’ must be a proportionate means of achieving a legitimate aim. It should be the least discriminatory/unfavourable treatment available to achieve the legitimate aim. If a less discriminatory/unfavourable option was available, then it is likely an employer would be expected to take that approach.

Take, for example, timekeeping. A brain injury can affect skills that help a person to manage their time effectively, such as their memory, learning, planning and problem-solving abilities. If timekeeping has become problematic, an employer should consider whether any performance management  could be dealt with through an informal chat and/or coaching, or whether a more formal capability or performance management approach is needed; if coaching would be sufficient, the more stressful/unfavourable formal process should be avoided in the first instance.

Informal coaching in this scenario might involve the employer helping the employee come up with ideas for managing their time better. This could involve things like using time blocking or reminders from a mobile phone or other device. If this fails, a more formal approach to improving time-management might be appropriate. This might include measures like agreeing that all of their tasks are sent to them in writing with a priority level, which should help to avoid confusion about what tasks they should be completing and how they should be prioritising.

Both employer and employee should try to be realistic about what the employee can achieve.

Opportunities for progression and promotion of brain-injured employees should be considered in the same way as for any other employee. Of course, the brain-injured employee will need to meet the promotion criteria, but employers should ensure that there are no barriers to promotion because of their injuries that could be avoided, such as the manner of assessment or interview.

Any decision to change their route of progression should come from the employee. It may be that their desire for promotion has changed following their injury, or they may want to get used to being back to work before they start thinking about the progression of their career.  If the employee has not indicated preference to pause their progression, employers should continue to discuss promotion with the employee as they would have done had the brain injury not occurred.

When it comes to considering promotions, employers should consider the promotion criteria carefully to ensure that anything which the employee might have difficulty meeting is reasonably required. (In legal terms, ‘a proportionate means of achieving a legitimate aim’.) Otherwise, a complaint could be made of indirect discrimination under section 19 of the Equality Act 2010 or failure to make reasonable adjustments under sections 20 and 21 of the Equality Act 2010. This consideration should also avoid the employer unintentionally discriminating against the employee, either on grounds of their disability (contrary to section 13 of the Equality Act 2010), or for any reason arising from their disability, i.e. their symptoms (contrary to section 15 of the Equality Act 2010), which is not objectively justified.

It is important for employers to recognise that promotion and career progression is still likely to be of importance to employees returning to work after a brain injury. By having an open-minded and inclusive environment, an employee should be able to reach their full potential.

Promotion of others

After a brain injury, an employee may experience a heightened emotional reaction to another employee being promoted ‘ahead of them’. Sometimes, another employee/employees will have progressed in their absence, and this might change the dynamic when the brain injured employee returns to work.

The injured employee may be frustrated with the effects of the brain injury and be concerned that they won’t be able to progress as they had planned. Employers may want to suggest making a ‘promotion plan’ with the employee so that they know there is an opportunity for them to progress. This should help prevent the employee from being treated less favourably because of the effect of their disability, which would be contrary to section 15 of the Equality Act 2010, or from feeling that they have, which could damage employment relationships.

When considering the needs of an employee with a brain injury in relation to promotion, it may be necessary for the employee or employer to take specialist advice on their legal rights/obligations.

Entitlement to career breaks and sabbaticals is not currently an employment right in the UK. If an employer offers opportunities to take paid or unpaid career breaks/sabbaticals, brain injured employees should not be discriminated against in relation to this. If a brain injured employee is not offered the same opportunities as other employees in this regard, the employer could be accused of discriminating against the employee, either on grounds of their disability (contrary to section 13 of the Equality Act 2010) or for any reason arising from their disability, i.e. their symptoms (contrary to section 15 of the Equality Act 2010 and potentially section 19 of the Equality Act 2010).

An employee’s entitlement to maternity or paternity leave is unaffected by their brain injury. They will be entitled, as a minimum, to statutory leave, and also to any enhancement to maternity or paternity leave if offered at the place of work.

Where a female employee has a brain injury and is pregnant, she may require additional time off for antenatal appointments (over and above standard antenatal care) during the period leading up to the maternity leave. Her childbirth and recovery may also require particularly careful medical management.

When the employee returns to work after maternity or paternity leave, their return will need to be carefully planned with them. A meeting with their employer when they are planning their return, to talk about how they feel about returning and what reasonable adjustments they might need, is likely to help.

When considering the needs of an employee with a brain injury in relation to maternity or paternity leave, it may be necessary to seek specialist advice from an employment law or HR expert.

Employers must not treat an employee any differently to others in relation to retirement on the basis of their brain injury. To do otherwise could lead to the employer being accused of discriminating against the employee, either on grounds of their disability (contrary to section 13 of the Equality Act 2010) or for any reason arising from their disability, i.e. their symptoms (contrary to section 15 of the Equality Act 2010).

Whatever the age of an employee, talking about their future will help employers to understand their ambitions and how their goals can be achieved.  As it becomes appropriate, these meetings provide a good opportunity to discuss the employee’s wishes in relation to retirement. As with any employee, this is something that needs to be discussed carefully.