Disability discrimination and reasonable adjustments to sickness absence policies

HR professionals often have to grapple with the question of whether to discount sickness absences for disabled employees in order to avoid falling foul of the duty under the Equality Act to make reasonable adjustments.

This is particularly so when common viral infections such as colds and flu are exacerbated by a disability such as asthma. In this case, the Employment Appeal Tribunal (EAT) states that there are ‘two approaches’ that an employer can take when applying a sickness absence policy to make allowances for employees whose disability increases their chances of contracting other ‘ordinary ailments’.

Mrs Whiteley suffered from asthma and, from January to October 2010, had 54 days’ sickness absence, 41 of which were due to ‘acute upper respiratory tract infections’. HMRC’s sickness absence policy was triggered when an employee took more than 10 days’ absence in a rolling 12-month period. HMRC discounted the days’ absence it took into account from 14 to 10 to make an allowance for Whiteley’s disability but this still triggered the policy so she was issued with a warning. The employment tribunal agreed with Whiteley that HMRC had failed to make reasonable adjustments by not discounting all the absences due to a viral infection…

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