What steps are employers required to take when considering the absence record of an employee who has a recognised disability? Ansons employment lawyer Adam Pike explains how this was clarified recently by the Employment Appeal Tribunal.

Under the Equality Act 2010 all employers have an obligation not to discriminate against disabled employees by treating them less favourably than others. This can sometimes require employers to make reasonable adjustments to the processes and procedures that they operate within their organisation.

It is accepted that some disabilities can result in an individual being more susceptible to common ailments. For example, an employee who suffers with asthma may be affected more often and more severely by viral chest infections.

In such a case, It would not be fair for the employer to apply its standard sickness absence policy as they are likely to be absent more often as a result of their disability. That is not to say that the employer is without any right to subject the employee to their internal procedures if they feel that absence has been excessive. However, an employer should make reasonable adjustments to the policy in order for it to be fair.

In the case of Commissioners for Her Majesty's Revenue & Customs v Whiteley, the Employment Appeals Tribunal identified the following two possible approaches that employers might adopt when seeking to make allowances for sickness absences caused by the interaction between an employee's disability and “other common ailments”: 

• to consider the periods of absence in detail (and, if necessary, with expert evidence) to assess precisely the level of absence that is attributable to disability; or
• having considered the proper information, to consider 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. 

Each method is likely to require some advice from a medical professional. The second approach is likely to be preferable to most employers.

Once the employer has determined to what extent absence has been, or might reasonably have been, caused by the disability they can disregard this number of days from the employee’s overall period of absence and implement the absence policy accordingly.

As an example, if an employee had been absent for 52 days in the relevant period but, after proper consideration, it was felt that a person with the specific disability complained of might reasonably be expected to be absent for around 43 days due to their disability. Their overall absence should be discounted and reduced to nine days for the purposes of implementing any absence policy.

This case provides some insight into the way that Employment Tribunals will consider the use of absence policies and the types of considerations employers should be making when dealing with disabled employees. However, no hard and fast rule can be applied and each case needs to be judged on its own merits.

If you are an employer or an employee and need advice or assistance about any employment law issues, then our solicitors will be able to assist you. Our employment law team has extensive experience in representation at employment tribunals.

For further assistance, please contact Adam Pike in the employment law team, on 01543 431 197 or email apike@ansonsllp.com.

Ansons Solicitors has offices in Cannock and Lichfield, Staffordshire.