The Employment Appeal Tribunal has recently considered how an employer might make allowances for disabled employees when applying its sickness absence policy.
Under the Equality Act 2010 (the "Act"), employers have a duty to make reasonable adjustments for employees and applicants who are disabled within the meaning of the Act. A person is disabled if they have:
"a physical or mental impairment which has a substantial and long-term effect on his or her ability to carry out normal day-to-day activities."
The employer's duty to make reasonable adjustments only arises where a provision, criterion or practice puts a disabled person at a substantial disadvantage when compared with a non-disabled person.
Failure to make a reasonable adjustment is disability discrimination for which an employer may be liable to pay an unlimited amount of compensation.
Many employers have sickness or capability procedures which contain "trigger points" linked to absence levels. Applying such polices to disabled employees, who are likely to have more sickness absence as a result of their disability, will put them at a substantial disadvantage and trigger the duty to make adjustments.
However, it may not be easy for an employer to be sure what will be a "reasonable" adjustment in such circumstances so a recent decision from the Employment Appeal Tribunal (EAT), Commissioners for HM Revenue & Customs v Whiteley, provides some helpful guidance.
The claimant suffered from asthma and worked for HM Revenue and Customs (HMRC). From January to October 2010 she took 15 days sickness absence, of which 14 days were because of a chest infection and viral infections. This triggered the employer's sickness absence policy - which kicked in after 10 days' absence in any rolling 12 month period. Mrs Whiteley was issued with a warning even though HMRC had reduced her absence days from 15 to 12 to take account of her disability.
Mrs Whiteley brought a failure to make reasonable adjustments claim. She relied on medical evidence which stated that common viral infections such as colds exacerbate asthma requiring further treatment and a few days away from work. The medical report stated that such an absence ".3 or 4 times over a year would be typical".
An employment tribunal upheld her claim finding that HMRC should have discounted all her absences for chest and viral infections when applying its sickness absence policy as these were "directly related" to her disability.
The employer appealed and this was upheld by the EAT which remitted the case to a new tribunal to reconsider it. The EAT found that the tribunal had misinterpreted the medical evidence as supporting the proposition that asthma sufferers were more susceptible to viral and chest infections. The expert had not said this, but rather that such infections would exacerbate the effects of asthma which might lead to sickness absence.
The EAT suggested that employers facing similar cases might adopt at least two possible approaches when making allowances for absences caused by a disability:
- Firstly, they could look in detail and, if necessary, with expert evidence, at the periods of absence in question and attempt to analyse what was attributable to disability and what was not.
Alternatively, they could ask, and answer with proper information, what sort of periods of absence someone suffering from the disability would reasonably be expected to have over the course of an average year due to their disability? The EAT anticipated that this approach would be of greater attraction to an employer.
In this case, if HMRC had taken the expert's conclusion that periods of absence of a few days, three or four times a year, were to be expected for an asthma sufferer and applied it to the 15 days under consideration it would have adopted a permissible approach.
While this case is a cautionary tale for employers, it also gives some comfort that not all disability related absence must always be disregarded for the purposes of applying a sickness absence policy. Just because someone is disabled under the Act and therefore potentially owed a duty to make reasonable adjustments, this does not mean an employer is unable to take action where their absences are in excess of what might be considered average for someone with the same disability. The case does however highlight how crucial it will always be to get thorough, expert medical advice in such cases before taking any action.