Employment Focus

Reasonable adjustments and sickness absence policies

Managing sickness absence can be difficult, particularly where employees are disabled and may require more time off than others. Effective sickness absence policies can help deal with absences consistently and effectively. However, employers need to ensure these are managed effectively to avoid disability discrimination. The strict application of a sickness absence policy may place disabled employees at a disadvantage and give rise to the duty to make reasonable adjustments.

This article examines the duty on employers to make adjustments and the impact this may have on the use of sickness absence policies

What is the duty to make reasonable adjustments?

The Equality Act (EqA) 2010 imposes a duty on employers to make reasonable adjustments to help disabled job applicants, employees and former employees where a disabled person is placed at a substantial disadvantage by:

– an employer’s provision, criterion or practice (PCP);
– a physical feature; or
– an employer’s failure to provide an auxiliary aid.

Employers must effectively treat the disabled person more favourably than others in an attempt to reduce or remove that individual’s disadvantage. A PCP can include any formal or informal policies, rules, practices or arrangements or qualifications including one off decisions and actions. Adjustments are reasonable and employers do not have a duty to take measures that would impose a disproportionate burden on them.

Adjusting sickness absence policies

A sickness absence policy without modification, may amount to discrimination. How far must an employer go in making adjustments?

Triggered disciplinary proceedings

In the case of Bray v London Borough of Camden [2002] UKEAT1162/01 the Employment Appeal Tribunal (EAT) concluded that employers do not have to ignore disability-related absences when applying their sickness absence policies. In this case the employee (who suffered from osteoarthritis and who was registered as disabled) was given a final written warning under the employee’s sickness absence policy following a number of absences from work.

In addition, in the cases of Patval v London Borough of Camden ET/2203464/07 and Jennings v Barts and The London NHS Trust UKEAT/0056/12 the Employment Tribunal (ET) and EAT respectively concluded that exempting an employee from an employers’ absence policy was not a reasonable adjustment.

However, in Ware v British Gas Trading Ltd ET/1606202/10 an employment tribunal ruled that an employer had failed to make reasonable adjustments when dismissing a disabled employee under its sickness absence policy. Mr Ware had a back complaint and was eventually dismissed under the absence policy.  This amounted to discrimination as British Gas had made no assessment of whether Mr Ware’s level of absence was acceptable in the circumstances.

This left matters in a confusing state.  However, guidance has now been provided in HMRC v Whiteley UKEAT/0581/12.  Mrs Whiteley claimed for failure to make reasonable adjustments after she was issued with a warning when her absence had triggered a sickness absence policy. Mrs Whiteley was asthmatic, and 41 of her 54 days’ absence were due to ‘acute upper respiratory tract infections’. The ET agreed that HMRC had failed to make adjustments by not discounting all her absences that had been due to viral infection.

The EAT states that there are at least two approaches that might be acceptable where an employer is considering what allowances to make for absences that stem from the interaction of a disability with other ordinary ailments:

1.consider the periods of absence in detail to assess precisely the level of absence that is attributable to disability and ignore these; or

2.having considered the proper information, consider what level of absence someone with a disability would reasonably be expected to have over the course of an average year to their disability and discount this.

Sick Pay

Disabled employees who are on long-term sick leave may exhaust any contractual sick pay entitlement.  Will discounting disability-related absence from the relevant calculation be a reasonable adjustment to make?

In Nottingham County Council v Meikle [2004] IRLR 703 a disabled employee remained absent from work because of their employer’s failure to make reasonable adjustments. The Court of Appeal (CA) therefore held that the employer’s failure to extend the provision of sick pay to the employee once their contractual entitlement had been exhausted amounted to unlawful discrimination.

However, in O’Hanlon v HMRC [2007] IRLR 404 a disabled employee, who had exhausted her contractual sick pay entitlement, claimed that she had been substantially disadvantaged by her employer’s sick pay rules. The CA decided it would only rarely be a reasonable adjustment to give higher sick pay to a disabled employee than a non-disabled employee. The duty to make reasonable adjustments is not to treat disabled persons as objects of charity.  The continuation of sick pay, which would otherwise have run out, was not a reasonable adjustment and Mrs Hanlon had not been discriminated against. This case was distinguished from Meikle on the basis that, in that case, the employee’s absence had been caused by the employers’ failure to make reasonable adjustments at work.

Hanlon was followed in the case of The Royal Bank of Scotland v Ashton UKEAT 0542/09/1612 UKEAT 0306/10 where the EAT said that, while there may be cases where it would be a reasonable adjustment to disapply the employer’s normal sick pay policy, such a case would have to be “exceptional”.

What about discretionary sick pay? Royal Bank of Scotland dealt with the question of extending sick pay in relation to discretionary sick pay and held that there was no discrimination because there was no disadvantage when compared to other workers.

What does this mean for employers…?

•It is likely to be very difficult for a disabled employee to argue that they are entitled to receive full pay for an entire period of absence once they have exhausted any contractual entitlement (unless an employer had contributed to the employee’s absence by failing to make reasonable adjustments).

•Although disabled employees are more likely to have significant sickness absence, this does not mean that an employer must ignore all disability-related absences when applying a sickness absence policy.

•It may be appropriate to make some adjustments to the terms of a policy by, for example, increasing the absence threshold before holding a formal meeting or increasing the number of warnings that are given before a decision is taken to dismiss.

•Thorough, independent medical advice will be vital.  The government is planning to set up a new Health and Work Service (due to be up and running next year) which will provide free occupational health assessments and treatment plans for employees who are off sick for 4 weeks or more. Employers who fail to seek this service, or follow recommendations made, could find themselves facing unfair dismissal or failure to make reasonable adjustments claims.

Employers should:
•find out as much as they can about an employee’s condition and its effects on their ability to carry out their role;

•establish whether there is anything they can do to assist an employee’s return to work; and

•consider being more generous with a disabled person in the amount of time off permitted before action is taken.

As always in practice, cases are unlikely to be straightforward so it would be wise to take legal advice before taking action under a sickness absence policy given the uncapped nature of disability discrimination damages.

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