Managing absences of disabled employees
Sickness absence can be a sensitive topic for employers, especially when considering whether to take disciplinary action over what they deem to be excessive absences.
This can become even more of a minefield when the employee suffers from a disability and the absences partially result from this.
A recent case in the Employment Appeal Tribunal (EAT) has provided some helpful guidance for employers on reasonable adjustments when assessing the absence levels of disabled employees.
A key aspect of disability discrimination law is complying with the employer's duty to make reasonable adjustments under section 20 of the Equality Act 2010.
If a disabled person is placed at a substantial disadvantage compared with people who are not disabled because of a provision, criteria or practice which an employer has implemented (such as taking disciplinary action after a specified number of days' absence), then the employer must make a reasonable adjustment to try and avoid that disadvantage.
The adjustment must be reasonable in the circumstances taking into account the financial resources of the employer and the potential disruption to their business.
In this case the employer had issued a warning to an employee with asthma as she had taken 15 days' absence during part of that year.
The company's policy only allowed for 10 days' absence in a rolling 12 month period before disciplinary action was considered. The employer had made an adjustment to account for the employee's asthma by disregarding three of the days but the Employment Tribunal (ET) felt this was not sufficient.
In the ET's opinion the employee's disability made her more susceptible to viral infections and the employer would have only discharged its duty to make reasonable adjustments by disregarding all the sickness absences as they all indirectly related to her disability.
The employer successfully appealed to the EAT which ruled that the ET had misunderstood the medical evidence and suggested that employers have at least two choices in a situation such as this:
- They can consider the periods of absence in detail to assess precisely the level of absence which is due to the disability
- They can consider the level of absence which may be reasonably be expected of a person with that disability over the course of an average year.
The important factor is to look at the specific facts of each situation as opposed to implementing a blanket adjustment.
If an employee is persistently absent, the employer should try to establish how many of the absences were disability-related.
The amount of effort that an employer is expected to put into this task will vary depending on the resources at hand.
It should be noted that employers are not required to disregard all absences that are disability-related; if there is excessive absence then that will need to be considered separately. When considering whether disciplinary action is appropriate, employers would be wise to request a medical report regarding the employee's disability which could, if desired, ask the medical professional to assess the absence in one of the two ways suggested by the EAT above.
The employer can then use this information to take a view as to what reasonable adjustments to make when applying its sickness absence policy in the circumstances.
This will vary from case to case and it is recommended that an employer takes legal advice before commencing any disciplinary action which could lead to an allegation of disability discrimination.