The EAT in Commissioners for Her Majesty’s Revenue & Customs v Whiteley recently considered whether an employer failed to make reasonable adjustments to allow for an employee’s asthma when applying its sickness absence policy. Though it asked a fresh Tribunal to re-hear the issues, the EAT did set out two ways in which an employer might account for sickness absences due to the interaction between an employee’s disability and other common ailments – see "EAT decision" below.

Background to the case

The Claimant in this case, Mrs Whiteley, has asthma. She is employed by HMRC.

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 an employment 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 must 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.

Tribunal’s decision

Perhaps surprisingly, there appears to have been no question that Mrs Whiteley was "disabled" for the purposes of the Equality Act 2010. Similarly, there was no question that the warning amounted to a detriment. The issue to be decided was whether that detriment resulted from a failure to make reasonable adjustments by HMRC.

Some medical evidence was given in the case about the possible effects of asthma. The tribunal construed that evidence as meaning 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 breached its duty to make reasonable adjustments under the Equality Act 2010 when it issued Mrs Whiteley with a warning.

HMRC appealed to the EAT.

EAT’s decision

The EAT decided that the tribunal had construed the expert evidence incorrectly. It decided the expert was not saying that an asthma sufferer will suffer such infections more frequently than a person who does not have asthma. What he was saying was that the infections would aggravate the effects of asthma, which could lead to sickness absence. Given this error, the tribunal’s conclusion could not stand and the case should be remitted for fresh consideration. The EAT acknowledged that the new tribunal may reach the same result but it was important that the result was reached through correct interpretation of the evidence before it.

More interestingly, the EAT suggested a couple of approaches employers might wish to take when considering sickness absences caused by the interaction between an employee’s disability and "other common ailments":

  • 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.
  • 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.

Implications

Disabled employees are more likely to have high levels of absence than non-disabled employees. Neither this case, nor previous cases, suggest employers should automatically discount disability-related absences. By the same token, neither should they automatically apply a sickness absence policy.

What is important is to look carefully at absences and make a rational decision on the basis of the information available. Ultimately, there will be no "one size fits all" approach – this is why it is so important to assess each case on its own facts and to carefully consider disability-related absences.