Sickness management must be adjusted for disabled employees
Allowing absence to trigger a disciplinary may not be reasonable for asthma sufferers, a recent case shows
An employer failing to make reasonable adjustments under s.20 of the Equality Act 2010 is a cornerstone of many disability discrimination claims. The reasonable adjustments duty is highlighted when an organisation implements a policy or way of doing things that puts disabled staff at a substantial disadvantage compared with their colleagues.
It becomes even more complicated, however, when common day-to-day afflictions that we all suffer from means further adjustments and considerations have to be taken to accommodate disabled employees, as a recent EAT decision in the case HMRC Commissioners v Whiteley demonstrates.
Facts
Whiteley had worked for HMRC since 1978. She suffered from asthma and between 2005 and 2010, she clocked up 54 days’ sickness absence, of which 13 were due to respiratory infections.
According to one of HMRC’s policies, sickness absences of more than 10 days in a single year were subject to further consideration by the employer. Exceeding the 10-day limit could spark disciplinary procedures, beginning with warnings and ultimately culminating in dismissal. In 2010, when Whiteley reached 15 days’ sickness absence in less than a year, HMRC issued her with a formal warning.
She complained to the employment tribunal that HMRC had failed to make proper adjustments under the Equality Act. She felt disadvantaged because of her disability -asthma. At the time when HMRC decided to issue the formal warning, it had no medical evidence but relied entirely on notes recording Whiteley’s own reports about her condition. The employer discounted three days out of the 15 days’ absence – leaving Whiteley’s absence still over the 10-day limit.
Tribunal
At the tribunal hearing, medical evidence was produced to say that 6-8 viral infections each year was to be expected for an individual with asthma. The condition itself would most likely exacerbate what may otherwise be merely a common cold, but no evidence suggested that suffering from asthma in itself would make anyone more susceptible to viral infections than others.
The employment tribunal decided - erroneously - that the medical evidence indicated that an asthma sufferer was more susceptible to a viral infection than a non-asthmatic person. Accordingly, it rejected HMRC’s meagre 3-day adjustment of the overall amount of sickness absence as inappropriate, ruling that all absences relating to viral or chest infections should have been discounted. The employer had, apparently, failed to make reasonable adjustments and should have sought relevant medical evidence before issuing the formal warning.
EAT
HMRC appealed and successfully demonstrated that the medical evidence before the tribunal had been misunderstood. The Employment Appeal Tribunal allowed the appeal and remitted the case back to a fresh tribunal to rehear the claim.
The EAT did, however, make some general observations about cases of this type and the allowances that could be made where sickness absences are caused by a common ailment exacerbating an existing disability. Employers should look in detail at periods of absence to see which might be disability related, and seek medical evidence to try and determine how often a person suffering from a disability is likely to be absent in a given year.
Comment
Employers would be wise to consider the facts of this case and make a concerted effort to identify disability-related absences. A sensible starting point would generally be to obtain medical advice about an employee’s disability and any impact it might have on their sickness absence record. A reasonable adjustment in the circumstances of this case, for example, would be to discount any disability-related absence or disregard any disciplinary proceedings arising out of a disability-related illness.
With such a sensitive and potentially damaging subject matter, it would be prudent for employers to seek appropriate advice before taking any formal action against an employee with a disability.
Paras Gorasia is an employment barrister at Kings Chambers.
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Sickness management must be adjusted for disabled employees
Allowing absence to trigger a disciplinary may not be reasonable for asthma sufferers, a recent case shows
An employer failing to make reasonable adjustments under s.20 of the Equality Act 2010 is a cornerstone of many disability discrimination claims. The reasonable adjustments duty is highlighted when an organisation implements a policy or way of doing things that puts disabled staff at a substantial disadvantage compared with their colleagues.
It becomes even more complicated, however, when common day-to-day afflictions that we all suffer from means further adjustments and considerations have to be taken to accommodate disabled employees, as a recent EAT decision in the case HMRC Commissioners v Whiteley demonstrates.
Facts
Whiteley had worked for HMRC since 1978. She suffered from asthma and between 2005 and 2010, she clocked up 54 days’ sickness absence, of which 13 were due to respiratory infections.
According to one of HMRC’s policies, sickness absences of more than 10 days in a single year were subject to further consideration by the employer. Exceeding the 10-day limit could spark disciplinary procedures, beginning with warnings and ultimately culminating in dismissal. In 2010, when Whiteley reached 15 days’ sickness absence in less than a year, HMRC issued her with a formal warning.
She complained to the employment tribunal that HMRC had failed to make proper adjustments under the Equality Act. She felt disadvantaged because of her disability -asthma. At the time when HMRC decided to issue the formal warning, it had no medical evidence but relied entirely on notes recording Whiteley’s own reports about her condition. The employer discounted three days out of the 15 days’ absence – leaving Whiteley’s absence still over the 10-day limit.
Tribunal
At the tribunal hearing, medical evidence was produced to say that 6-8 viral infections each year was to be expected for an individual with asthma. The condition itself would most likely exacerbate what may otherwise be merely a common cold, but no evidence suggested that suffering from asthma in itself would make anyone more susceptible to viral infections than others.
The employment tribunal decided - erroneously - that the medical evidence indicated that an asthma sufferer was more susceptible to a viral infection than a non-asthmatic person. Accordingly, it rejected HMRC’s meagre 3-day adjustment of the overall amount of sickness absence as inappropriate, ruling that all absences relating to viral or chest infections should have been discounted. The employer had, apparently, failed to make reasonable adjustments and should have sought relevant medical evidence before issuing the formal warning.
EAT
HMRC appealed and successfully demonstrated that the medical evidence before the tribunal had been misunderstood. The Employment Appeal Tribunal allowed the appeal and remitted the case back to a fresh tribunal to rehear the claim.
The EAT did, however, make some general observations about cases of this type and the allowances that could be made where sickness absences are caused by a common ailment exacerbating an existing disability. Employers should look in detail at periods of absence to see which might be disability related, and seek medical evidence to try and determine how often a person suffering from a disability is likely to be absent in a given year.
Comment
Employers would be wise to consider the facts of this case and make a concerted effort to identify disability-related absences. A sensible starting point would generally be to obtain medical advice about an employee’s disability and any impact it might have on their sickness absence record. A reasonable adjustment in the circumstances of this case, for example, would be to discount any disability-related absence or disregard any disciplinary proceedings arising out of a disability-related illness.
With such a sensitive and potentially damaging subject matter, it would be prudent for employers to seek appropriate advice before taking any formal action against an employee with a disability.
Paras Gorasia is an employment barrister at Kings Chambers.
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