The EAT has held that when managing sickness absence in the case of a disabled employee, an employer may be permitted to approach the issue by asking itself what sort of periods of absence someone suffering from the disability would reasonably be expected to have over the course of an average year due to her disability.
Under s.20 of the Equality Act 2010, where a provision, criterion or practice (a "PCP") puts a disabled employee at a substantial disadvantage compared to employees who are not disabled, the employer is required to make such adjustments as are reasonable to remove that disadvantage. What is "reasonable" will depend on all the circumstances of the case.
Since disabled employees tend to have more sickness absences than others, the strict application of a sickness absence policy to them, where that results in any form of disciplinary sanction, will amount to a disadvantage and, therefore, disability discrimination. It can be difficult for employers to identify the extent to which they are required to modify a policy in order to satisfy their duty to make reasonable adjustments under s.20, particularly where the interaction between an employee's disability and other more common ailments make it hard to recognise which periods of absence are actually attributable to the disability.
HMRC v Whiteley
Mrs Whiteley, an asthmatic, worked for HMRC. Between January and October 2010, Mrs Whiteley had 15 days' sickness absence. HMRC's notes of its communications with Mrs Whiteley during her absences referred to all but one of those days of absence being due to either viral upper respiratory tract infections or chest infections. Under HMRC's sickness absence policy, absences of more than 10 days in a rolling one year period are subject to consideration and may trigger a disciplinary process and the imposition of sanctions, leading eventually to the possibility of dismissal. Mrs Whiteley's absence was considered under the policy and, although HMRC discounted 3 of the 15 days (without medical evidence) to make allowance for her asthma, the absence still exceeded the 10 day threshold and a warning was issued. Mrs Whiteley alleged that HMRC had failed to make reasonable adjustments to its policy as required by s.20.
On the basis of a medical report presented by Mrs Whiteley at the hearing, which confirmed that common ailments such as coughs and colds could exacerbate the symptoms of asthma, the Tribunal concluded that Mrs Whiteley's absences were directly related to her asthma and held that HMRC had failed to make reasonable adjustments to its policy. HMRC appealed.
The EAT held that the Tribunal had misread the medical evidence, and reached its decision on flawed grounds. The case was therefore remitted for hearing by a different Tribunal. However, the EAT also set out some helpful general guidance on managing sickness absence for disabled employees. The EAT accepted that, in principle, there are at least two potentially acceptable approaches where an employer is considering what allowances to make for absences which stem from the interaction between a disability and other ordinary ailments. The employer could either:
- "look in detail and with care and, if necessary, with expert evidence at the periods of absence under review and attempt to analyse with precision what was attributable to disability and what was not"; or
- "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 his or her disability?"
The approach described at (b) above is likely to be more attractive to employers in terms of its feasibility. Provided that an employer is aware of the nature of the employee's disability, it should be relatively straightforward for most employers to obtain information, e.g. from Occupational Health advisers, on the typical patterns of absence that could reasonably be expected from someone with the given disability over an average year.
The approach at (a), which requires a precise analysis of each and every period of absence, would seem to be a far more demanding exercise, and one in which an employer has a far greater potential to trip up.
However, while the EAT's guidance is certainly helpful, it is important to remember that each case should be assessed on its individual facts, since what is considered reasonable in one case may not be in another.