Case update (1): Disability discrimination – managing sickness absence

Summary: When considering reasonable adjustments for a disabled employee when and how should an employer make allowances for disability related sick leave? The EAT suggests there are ‘at least two approaches’ in Commissioners for HMRC v Whiteley.

Employers could (1) look to determine precisely the level of absence that is attributable to a disability and what was not; or (2) ask and answer with proper information the question: ‘What sort of periods of absence would someone suffering from the disability reasonably be expected to have over the course of an average year due to the disability?’

Facts:  Mrs Whiteley is employed by HMRC and she has asthma.  As part of its sickness absence policy, HMRC scrutinises absences of more than 10 days due to ill health in a rolling 12 month period, and can issue warnings as a result. From January to October 2010, Mrs Whiteley took 15 days’ sickness absence, 14 of which were due to viral infections and a chest infection. HMRC’s sickness absence policy was therefore triggered – Mrs Whiteley had taken more than 10 days’ absence in a rolling 12-month period. Having considered her absences, HMRC issued her with a warning.

Mrs Whiteley complained to a Tribunal that HMRC had failed to make reasonable adjustments under the Equality Act 2010.  She claimed that the duty to make reasonable adjustments had arisen because there was a provision, criterion or practice (i.e. the sickness absence policy) which put her (and other disabled employees) at a substantial disadvantage in comparison with those who are not disabled. She claimed that, as a result, HMRC was under a duty to take such steps as it is reasonable to take to avoid this disadvantage – in this case, adjusting the sickness absence policy. By failing to do so and issuing her with a warning, HMRC had, she said, breached its duty to make reasonable adjustments.

The Tribunal found, on the basis of the expert evidence it heard, that Mrs Whiteley was more susceptible to viral infections as a result of her asthma. It held that HMRC should have found that all absences due to such infections were “directly related” to her asthma, and should have ignored them when applying its sickness absence policy. As a result, it found that, HMRC had failed to make reasonable adjustments when it issued Mrs Whiteley with a warning.

HMRC appealed to the EAT and the EAT agreed with HMRC, upholding the appeal.  The EAT felt that it was not appropriate, as the Tribunal had done, to wholly discount all the relevant periods of absence due to respiratory infections from consideration under the policy. This had been based upon a misunderstanding of the medical evidence by the Tribunal. A more permissible approach would have been to consider the medical evidence as to the periods of absence which might be expected of an asthma sufferer, then to apply it to the level of absence being considered for the individual employee.

Interestingly, the EAT suggested a couple of approaches that employers might wish to take when considering sickness absence caused by the interaction between an employee’s disability and “other common ailments”:

1.  Employers could look at the periods of absence in detail (if necessary, with expert evidence) to assess the level of absence that is attributable to disability and what is not; or
2.  Employers could (having looked at the correct information) decide what level of absence someone with a particular disability would reasonably be expected to have over the course of an average year due to that disability.

The EAT anticipated that the second approach would be more attractive to employers.

Implications:  Disabled employees are more likely to have high levels of absence than non-disabled employees. The EAT was probably right to say that employers will be attracted to the idea that, when applying sickness absence policies, they need only ignore the level of absence that someone with a particular disability might be expected to have in an average year due to that disability.  However, it is questionable whether this approach will be “reasonable” in every case.  For example, it would seem unreasonable for an employer to take disciplinary action against a long-serving employee who needs to take, say, a month off because of a disability-related ailment (in excess of the average absence anticipated). Ultimately, there will be no “one size fits all” approach.  What is important is to assess each case on its own facts and to carefully consider disability-related absences and make a rational decision on the basis of the information available.