Addleshaw Goddard

UK 200 2013 position: 23

Disability and reasonable adjustments

The Employment Appeal Tribunal (EAT) has held that an employment tribunal erred in deciding that an employer’s approach of discounting some disability-related absence from the overall level of sickness absence was impermissible and remitted the matter to a fresh tribunal. In reaching this decision, the EAT offered guidance on two possible approaches that employers may adopt when making allowances for absences caused by disabilities that interact with ordinary ailments (Commissioners for Her Majesty’s Revenue & Customs v Whiteley).

Under the Equality Act 2010, employers have a duty to make ‘reasonable adjustments’ for disabled employees where the employer operates a provision, criterion or practice that puts the disabled employee at a substantial disadvantage in comparison with those who are not disabled.

It is common for disabled employees to have a greater level of sickness absence than non-disabled employees. Accordingly, sickness absence policies that provide scope to impose penalties after a certain level of sickness absence is reached are likely to disadvantage disabled employees. In this case, the EAT considered how employers should approach the difficult issue of adjusting such policies for disabled employees…

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