I was involved with a case earlier this year (HMRC Commissioners v Whiteley) which involved the Employment Appeal Tribunal (“EAT”) considering what approach should be taken by employers in making adjustments for employees that suffer from conditions which have a close interaction with day-to-day afflictions.
The Circumstances of the Case
The EAT hearing related to an Employment Tribunal case last year where we had successfully represented an employee (“Mrs Whiteley”) in a claim for failure by her employer (“HMRC”) to make reasonable adjustments on account of her disability.
Mrs Whiteley suffered from asthma and had taken fifty four days’ sick leave during the course of five and a half years, with over a third of these arising due to upper respiratory tract infections.
Under HMRC’s internal absence management policy, the number of Mrs Whitley’s absences triggered a process that resulted in her being issued with a formal warning. As a result, Mrs Whiteley issued a claim asserting that HMRC’s policy put her at a disadvantage (in that it did not allow for sufficient days’ absence which related to her condition to be discounted from those which were considered when deciding whether to instigate the formal process) and, therefore, that HMRC had failed to make reasonable adjustments on account of her disability.
The complicating factor in this case was the close interaction between the disability and other more run-of-of-the-mill afflictions such that it was often difficult to tell to what extent periods of absence were attributable to her disability.
At first instance the Employment Tribunal agreed that there had been a failure to make reasonable adjustments by HMRC. HMRC appealed this decision.
The EAT Judgment
Ultimately, the eventual decision arrived at by the EAT (that the Employment Judge had misunderstood the medical evidence and reached his decision on flawed grounds and that the case should be remitted back to a differently constituted Employment Tribunal panel to be reheard all over again) is less interesting to the external observer than the EAT’s general discussions about this type of case.
The EAT suggested two different types of approach that could make allowances for sickness absences that are caused by a disability that interacts with other ailments. The first approach is to look at expert evidence in relation to the periods of absence in question, and analyse which absences are due to the employee’s asthma, and which are not. The second approach is to investigate (with appropriate evidence) what lengths of periods of absence a person suffering from a particular disability could reasonably expect over the course of an average year.
Any employer facing a situation like that outlined in this case needs to give serious consideration to which approach suggested by the EAT would be appropriate to adopt in light of the specific circumstances of their case. As the EAT made clear in its judgment, this area is not always straightforward and, therefore, employers would be well advised to take appropriate advice before taking formal action under any absence management process it may have against an employee who may have a disability.
Blacks Solicitors LLP
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