Labour & European Law Review Weekly Issue 337 18 September 2013
Under the Equality Act, employers have to make reasonable adjustments for disabled workers, which can include making allowances for a person’s sickness absence. In HMRC v Whiteley, the Employment Appeal Tribunal held that, where the person’s disability interacted with other ailments, employers could calculate the periods of absence that the person could reasonably be expected to have over an average year due to their disability.
Mrs Whiteley, who had worked for HMRC since 1978, suffered from asthma which her employer recognised as a disability under the Equality Act 2010. She was off sick for 54 days from January 2005 until September 2010, mainly due to acute upper respiratory tract infections.
HMRC operated a policy whereby an employee could be disciplined (and ultimately dismissed) if they took more than 10 days off sick in a year. In 2010, it noted that Mrs Whiteley had taken 15 days off sick on three different occasions. All bar one of the days were due to viral/chest infections.
Based solely on what Mrs Whiteley had reported about her condition during the days of her absence, HMRC made an allowance for her disability by reducing the total period of absence from 15 down to 12 days. No medical evidence was obtained. As this was still two days over the “consideration point” of 10 days, HMRC issued her with a warning.
Mrs Whiteley complained that her employer had failed to make proper adjustments under section 20 of the Equality Act to avoid the disadvantage caused to her by her asthma. HMRC argued that their policy of making an “apportionment” (an allowance in respect of her asthma which interacted with other conditions) was the appropriate method of dealing with her disability.
The medical evidence before the tribunal stated that although it was not uncommon for people to suffer six to eight viral illnesses each year without needing to take much time off, asthmatics often found it made their condition worse and so typically would need to take a few days off three or four times a year.
The tribunal interpreted that as meaning that an asthmatic person would be more susceptible to relevant infections than a non-asthmatic and therefore found that any absences due to relevant infections were “directly related” to the condition of asthma. It concluded that, had the HMRC obtained medical evidence, it would have realised that the three absences in 2010 were “directly related” to the condition of asthma and should have been discounted.
It therefore rejected the HMRC’s “apportionment” approach and held that it had failed to make reasonable adjustments.
The EAT concluded that the tribunal had committed a basic error of analysis when considering the medical evidence and that the claim would therefore need to be heard again by a new tribunal.
It also provided guidance stating that there were at least two possible approaches to making allowances for absences caused by a disability that interacts with other “ordinary ailments”.
One approach would be to look in detail and, if necessary, with expert evidence at the periods of absence and analyse what was attributable to the disability and what was not. The alternative approach (more likely to be favoured by employers) would be to consider what periods of absence someone suffering from the disability could reasonably be expected to have over the course of an average year due to their disability.