12 September 2013

Sickness absence policies and reasonable adjustments

The duty to make reasonable adjustments in respect of the disabilities of employees can be a legal minefield for employers. The duty can arise where an employer's provision, criterion or practice puts a disabled employee at a substantial disadvantage in comparison to those who are not disabled.
Disabled employees are more likely than others to have significant sickness absence. Therefore, the strict application of a sickness policy is likely to place disabled employees at a substantial disadvantage and therefore give rise to the duty to make adjustments.

In practice then what approach should be taken by employers in respect of employees whose disability is exacerbated by other common illnesses such as cold and flu? The Employment Appeals Tribunal (EAT) recently considered this point in the case of HMRC Commissioners v Whiteley.

In this particular case the disability that afflicted Ms Whiteley was asthma, which was compounded by certain respiratory infections, causing her absence from work. The employer in this case had a sickness absence procedure which was triggered when an employee was absent through illness for ten days or more, at which point the employer would consider subjecting the employee to disciplinary action.

Ms Whiteley was subjected to this policy, though was not dismissed at any point as a result and later brought a complaint to the Employment Tribunal (ET) to the effect that the policy put her at a substantial disadvantage, and that her employer had accordingly failed to make reasonable adjustments.

The EAT in considering the facts of Ms Whiteley's original claim to the ET set out two possible routes an employer could take when faced with such a scenario. First an employer could consider the employee's period of absence alongside expert medical evidence and try to precisely analyse how much of the absence was attributable to the disability in question and what was not.

Alternatively an employer could consider (again with the aid of expert medical evidence) the likely periods of absence the employee would reasonably be expected to suffer over the course of a year due to their particular disability.

The appeal to the EAT from the original ET was in respect of the ET's misinterpretation of expert evidence on these very points. Allowing the appeal the EAT directed that the case be remitted to a freshly constituted tribunal to consider the evidence anew.

Conclusion
The above guidance in respect of this rather unique aspect of UK employment law is certainly helpful, however the actual interpretation of expert medical evidence is no easy task. Here we see that the Judge in the original tribunal case had failed to do this correctly in the view of the EAT, hence the appeal being allowed.
Employers then should be extra cautious when seeking to take a disabled employee to a disciplinary hearing for persistent or extended sickness absence. In particular they should obtain as much medical information as possible prior to pressing ahead with the disciplinary.