When considering reasonable adjustments for a disabled employee when and, how should an employer make allowances for disability related sick leave? The EAT has issued some helpful guidance in Commissioners for HMRC v Whiteley UKEAT/0581/12 by suggesting there are ‘at least two approaches’:
- to look in detail at the periods of absence under review and, with expert evidence if necessary, attempt to analyse precisely what was attributable to disability and what was not, or
- obtain the proper information and consider what periods of absence someone suffering from that disability might reasonably be expected to have, due to their disability, over the course of an average year.
The EAT anticipated that the second approach would be more attractive to employers. In the case, the interaction of the employee’s disability (asthma) upon other respiratory infections (such as cold and flu) was being considered in relation to HMRC’s sickness absence policy and its trigger point for disciplinary action. Although some allowance was made, her number of absences over the course of a year was still above the threshold and Mrs Whiteley was issued with a warning. The employment tribunal found that because asthma sufferers are more susceptible to respiratory infections (which those without the disability may find easier to manage without requiring time off work), that this represented a failure to take reasonable steps to avoid the disadvantage caused to her by her disability.
However, the EAT upheld the employer’s appeal. 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.
The case was remitted to a freshly constituted tribunal for a rehearing.