The claimant suffered from asthma and had taken 15 days of sickness absence during a 10 month period, 14 of which were for viral/chest infections. The employer's absence management policy was triggered when an employee took more than 10 days' absence in a rolling 12 month period. Although the employer discounted three days of absence, the trigger point had still been exceeded and the claimant was given a first written warning. She claimed that the employer had failed to make reasonable adjustments, in the light of evidence that her asthma was likely to exacerbate viral infections.
The EAT said that the employer has two options when dealing with this sort of scenario:
- assess in each case whether absence is or is not attributable to the disability; or
- ask what sorts of periods of absence someone with that disability might be expected to have over the course of an average year.
The EAT went on to conclude that the Tribunal should have acknowledged the medical evidence that periods of absence of a few days three or four times a year would have been expected for an asthma sufferer and applied this to the claimant's 15 days' absence.
This analysis by the EAT implies that periods of absence calculated by one of the two routes suggested by the EAT must be discounted for the purposes of absence management. This is now an area of considerable uncertainty for employers. The duty to make reasonable adjustments only kicks in if a "provision, criterion or practice" has been applied which puts the employee at a substantial disadvantage. This has to involve a comparison of the employee's treatment with that of non-disabled colleagues. Some previous cases have suggested that if an absence management policy is applied equally to non-disabled employees who are absent from work because of sickness, there is no disadvantage and therefore no duty to make reasonable adjustments arises. But this point does not seem to have been raised in this case and the EAT's comments about the mechanics of discounting suggest it may no longer be correct.