Distinguishing unwise decision-making from lacking capacity
Dec 12 2023
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Whilst it is generally accepted that disabled employees may have higher levels of sickness absence, it can be difficult for employers to decide how to apply their normal sickness absence policy in these circumstances. Earlier this month, the Employment Appeal Tribunal helpfully provided useful guidance on possible approaches that an employer may adopt, in order to make allowances for disabled employees who have a greater chance of contracting 'ordinary ailments' linked to their disability. Sarah Maddock explains more.
The Equality Act 2010 imposes a duty on employers to make reasonable adjustments for disabled employees. The duty can arise where an employer's “provision, criterion or practice” (PCP) puts a disabled employee at a substantial disadvantage in comparison with those who are not disabled. An employer under the duty must take such steps as it is reasonable to avoid this disadvantage. PCPs under the Equality Act may include employers’ standard policies and procedures, which can include sickness absence and capability procedures.
Disabled employees are often more likely than others to have high levels of sickness absence; and many employers have absence or capability procedures with certain 'trigger points' for initiating the procedure. Therefore, the strict application of a sickness absence policy may place disabled employees at a substantial disadvantage and thereby give rise to the duty to make reasonable adjustments.
In the recent case of Commissioners for Her Majesty's Revenue & Customs v Whiteley, the Employment Appeal Tribunal (EAT) considered whether an employer had breached its reasonable adjustments duty when it failed to discount an asthmatic employee's absences when applying its sickness absence policy.
The Claimant, Mrs Whiteley, works for HMRC and suffers from asthma. From January to October 2010, Mrs Whiteley took 15 days' sickness absence. 14 of these were because of viral infections and a chest infection. Owing to her absence record, HMRC applied its sickness absence policy, which was triggered when an employee took more than 10 days' absence in a rolling 12-month period. Mrs Whiteley was issued with a warning under the policy, even though HMRC reduced its usual 'trigger point' of 15 days' absence to 12, to take into account Mrs Whiteley’s disability.
Mrs Whiteley lodged a claim with an employment tribunal on the basis that HMRC had failed to make reasonable adjustments under section 20 of the Equality Act 2010. At the hearing, she relied on medical evidence that stated that, for people with asthma, viral illnesses are likely to be worse and an absence of a few days occurring 3 or 4 times over a year would be typical.
Taking this evidence into account, the tribunal concluded that Mrs Whiteley's asthma made her more susceptible to viral infections; as such, HMRC should have discounted them altogether when applying its sickness absence policy. Accordingly, HMRC had failed to make 'reasonable adjustments' under the Equality Act 2010 when it issued Mrs Whiteley with a warning.
HMRC appealed to the EAT.
The EAT upheld HMRC's appeal and sent the case back to a fresh tribunal to be reconsidered: the EAT felt that the ET had made a technical error in how it had approached the medical evidence so, therefore, the case needed to be reheard.
However, the more salient point for those applying the Equality Act in the workplace, is that the EAT went on to provide useful guidance on the possible approaches that are open to employers when seeking to make allowances for sickness absences caused by the interaction between an employee's disability and "other common ailments".
The EAT said that there are at least two possible approaches employers might adopt when seeking to make allowances for sickness absences caused by the interaction between an employee's disability and "other common ailments"
In Mrs Whiteley's case, the EAT said that the tribunal should simply have acknowledged the medical evidence that periods of absence of a few days three or four times a year were to be expected for an asthma sufferer, and applied this to the 15 days' absence under consideration.
This case does provide a useful, practical steer on possible approaches that an employer might consider when grappling with the thorny question of how to deal with disability related absence. This is not to say, however, that the two options the EAT suggests are set in stone and will always be reasonable in all scenarios. For example, it may not be appropriate to follow the EAT's suggested approaches if a long serving employee, with a generally good attendance record, had a one-off occasion of absence in excess of the average absence anticipated for a person with that disability. It is important to remember that questions of reasonableness in relation to the extent to which an employer should act to eliminate the effect of a PCP will turn very much on the facts of individual scenarios.
It is also important to remember that this particular case
related to a claim for a failure to make reasonable adjustments;
similar facts could also give rise to claims for disability-related
discrimination and indirect disability discrimination.