Helena Davies: Employer duties surrounding disability and sickness absence

Although the duty on employers to make reasonable adjustments for employees with a disability sits alongside the three types of disability discrimination (direct, indirect and discrimination arising from a disability), it is typically the key issue in relation to sickness absence.

The claimant in HMRC v Whiteley suffered from asthma and had taken 15 days of sickness absence during a 10-month period, 14 of which were for viral and/or chest infections. 

The employer’s absence management policy was triggered because, even allowing for three days of absence discounted by the employer, she had taken more than 10 days’ absence in a rolling 12-month period. 

The claimant, who was given a first written warning, argued that her employer had failed in its duty to make reasonable adjustments, in the light of evidence that her asthma was likely to exacerbate infections. 

Medical evidence

The Employment Appeal Tribunal (EAT) decided that the employer should have acknowledged the medical evidence that periods of absence of a few days three or four times a year would be expected for an asthma sufferer and applied this to the claimant’s absence. 

The EAT went on to outline two options for employers faced with this scenario:

  • Assess, in relation to each instance, whether the absence is or is not attributable to the disability; or
  • Ask what sorts of periods of absence someone with that disability might be expected to have over the course of an average year, the strong implication being that, whichever method is used, absence must be discounted. 

The problem

The problem is that the duty to make reasonable adjustments kicks in only if a “provision, criterion or practice” has been applied that puts the employee at a substantial disadvantage. This has to involve a comparison of the employee’s treatment with that of colleagues who do not have a disability. 

Some previous cases have suggested that, if an absence management policy is applied equally to all employees who are absent because of sickness, there is no disadvantage to those with a disability and therefore no duty to make reasonable adjustments arises. But the comments about the mechanics of discounting in HMRC v Whiteley suggest this may no longer be correct.

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However, on the basis of current case law, discounting does not extend to sick pay. Only in exceptional cases would it be a reasonable adjustment to give more sick pay, or pay it at a higher rate, to disabled employees, not least because this might act as a disincentive to return to work, thereby defeating the purpose of reasonable adjustments. 

Helena Davies is an associate in the employment group at Hogan Lovells