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Sickness Absence Caused by Disability-Related Illness

In a recent case, the employee alleged that her employer, HMRC, operated a discriminatory sickness absence procedure because it failed to take account of any time off caused by her disability. Was she right or wrong?

To discourage and deal with unacceptable levels of sickness absence, many employers operate systems that trigger a formal review when an employee exceeds a pre-determined number of sick days. This type of system is often thought to be fair because it subjects all staff to exactly the same rule. However, in the recent case of HMRC Commissioners v Whitely 2013 , the employee alleged that such a policy is discriminatory.

What happened and what do you need to know?

Facts of the case

Whitely (W), who suffers from severe asthma which can be exacerbated by respiratory infections, had been employed by HMRC since 1978. HMRC operated a policy which stated that “sickness absences of more than ten days in a single year would trigger disciplinary proceedings” and could, ultimately, result in an employee’s dismissal. During 2010, W accrued 15 sick days and, as a consequence, the powers that be at HMRC issued her with a formal warning about her unacceptable level of sickness absence.

Discriminatory practice or not?

W was unhappy about this decision because HMRC hadn’t given her any “credit” for her asthma (which it accepted to be a disability). She, therefore, complained to the tribunal where she alleged that HMRC’s sickness absence policy was discriminatory (because it had failed to take account of those staff with disabilities) and that, having known about her disability, it had further failed to make reasonable adjustments as is required by s.20 of the Equality Act 2010 .

Over to the EAT

Whilst the tribunal heard medical evidence that a certain number of viral infections each year should be expected for an individual with severe asthma, it erroneously decided that this meant an asthma sufferer was more susceptible to a viral infection than a non-asthmatic person. When it used this reasoning to find in W’s favour, HMRC appealed to the Employment Appeal Tribunal (EAT).

What happened there?

The EAT ruled that the tribunal had “misunderstood” the medical evidence and remitted the case back to a fresh tribunal to rehear the claim. It also made some general observations about sickness absence caused by common ailments which exacerbate existing disabilities. In this regard, it said that employers should look at episodes of sickness absence to see which ones might be disability-related and try to determine how often a person suffering from a disability is likely to be absent in a given year.

Tip. So, if you have an employee with a disability who has an unacceptable level of sickness absence, don’t jump to any conclusions. Obtain medical advice on the impact it might have on their overall sickness absence record (see The next step ). Depending on that advice, a reasonable adjustment (assuming this is necessary) could be to discount any disability-related sickness absence from that employee’s overall sickness record.

The Employment Appeal Tribunal has ruled that a failure to disregard disability-related sickness absence is “discriminatory treatment”. So, if an employee has an unacceptable sickness record, always ignore any episodes caused by their disability before you take formal action. Seek medical advice if you’re unsure.

Call Adrian at Berkeley Solicitors for further details or advice 0161-371 0011

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