It has been covered a few times and will hopefully be clear to readers that if a worker is absent from work and the reason for the absence is because of a disability related reason then the employer may is likely to be under a duty to make disability related adjustments if, because of those absences the worker is placed at some form of a risk.
The ‘common’ approach
The common way this presents itself is when an employer has a policy of issuing a worker warnings for short term absences. So, suppose the employer has a policy that if a worker is absent for ten days with a common cold then it is not immediately apparent this is related to disability and the worker would not appear to have a discrimination complaint.
Now suppose the worker is absent for 9 days for the common cold and one day because of cancer (a disability). If the worker is summoned to a meeting then that worker has would have an argument that the application the policy of ten days places her, as a disabled person, at a substantial disadvantage because by reason of disability she is more likely to breach this ‘trigger point’ and that there is a reasonable adjustment they can make that would remove the disadvantage, for example adjust the ‘trigger point’ to either exclude disability absences or to increase them accordingly (i.e., eleven days instead of ten).
For many years this was uncontested but in 2014 this was thrown into doubt when the Employment Appeal Tribunal found that for the purposes of the comparison required with a non disabled worker (s.20(3) of the EqA refers to a “comparison with persons who are not disabled”) the relevant comparator would be a person who had eleven days absence for non-disability reasons and the question would be whether that person would be treated in the same way. The decision threatened to make a mockery of the very principle of reasonable adjustments in sickness procedures because it disregarded the fact that it was the disability that was often a factor in the increased sickness levels in the first place. Thankfully, the following year (in a case backed by my union PCS) the decision was reversed by the Court of Appeal and the status quo was restored. What once again became crucial was not whether a non-disabled person with the same absence history would have been treated the same way but whether the changes required were reasonable in all the circumstances. A bittersweet aspect of the case was that despite the victory on the point of law on the facts the Court of Appeal found the changes required were not reasonable in all the circumstances and so Ms Griffiths disability discrimination claim was still dismissed.
However, Griffiths was still an important judgement in that it once again made clear that an employer’s duty to make adjustments included a requirement that adjustments will often need to be made any trigger points used in short term absence procedures.
Therefore, if, despite being aware of this obligation (and the disability), an employer were nevertheless to issue a warning for the eleven days there is a reasonable chance the employer would be found to have failed to make reasonable adjustments. My own practice in such a case (which is a remarkably common one) is to say that issuing the warning amounts to discrimination arising from disability (section 15 of the EqA).
This occurs when a worker:
- is treated unfavourably (issued a warning)
- because of something (the sickness absences)
- arising from disability (the ill-health arising from disability)
Although that can be justified by an employer as proportionate but the EHRC Code of Practice on Employment (and caselaw too) makes clear that if there is a failure to make prior adjustments that may have avoided the treatment then this is unlikely to be proportionate:
And so, the worker given a warning for having ten day’s sickness which included one day’s disability related absence is likely to have a potential complaint of disability discrimination against their employer. And, for a trade union rep assisting a union member in such proceedings this will often be a very ‘bread and butter’ submission and one whose effectiveness is not diminished by repetition.
In disability discrimination discussions reference to a hidden disability is usually reference to a disability that is not immediately discernible to an onlooker in the way that, for example, a person in a wheelchair may be. That is not what I mean here when I refer to hidden disabilities. Instead, I mean the situation where the reasons for the absence doe not tell the whole story for the reason for absence.
This raises another not quite so common disability discrimination complaint in respect of short term absences of hidden disabilities. What I mean by this is that returning to the example above of the worker with ten days of absences in the last year for ‘colds’ there is nothing in that reveals a likely disability. Colds are, for example, experienced by disabled and non disabled workers alike.
There are some conditions where a person is likely to be more unwell when they experience a cold or will be unwell for longer. Asthma is one such condition but the principle applies to many situations where there is an underlying disability that has the effect of worsening otherwise common ailments to makes the frequency of such impairments more common.
The difficulty here is unlike in out ‘common’ scenario one cannot tick off some absences as disability related but others as not to show that the warning is arising from disability. A person who has asthma (a disability) would have been likely to be unwell even if it were not for their asthma. However, whether they would have been quite so unwell to prevent attendance at work or would have recovered as quickly is very much an issue which, in our example, raises a question whether there would have been ten days absence but, perhaps, only four or five were it not for the asthma.
This is often a less obvious situation and one that requires an worker and their representative to explore in advance to identify if there are underlying health conditions that are likely to have an impact on the length or frequency of absences for certain types of illness. If there are then for the same basic argument can be used as in the common scenario with the caveat that the argument is not that the absences were solely caused by disability but that disability was a material factor in why the absences were as long/frequent as they were and that but for disability the periods of absence would have been likely to be lower.
Although it is not a legally significant ruling the EAT’s decision in HMRC v Whiteley (2013) is one I have often referred to in cases and gives guidance to employers on two reasonable approaches they should take when considering applying an adjustment for disabled workers to trigger points for short term absences arising in part from hidden disabilities. The key section of the judgement reads:
There are, in principle, at least two possible approaches to making allowances for absences caused by a disability that interacts with other ordinary ailments. One is to look in detail and with care and, if necessary, with expert evidence at the periods of absence under review and to attempt to analyse with precision what was attributable to disability and what was not. The alternative approach, which we anticipate will be of greater attraction to an employer, is to ask and answer with proper information the question: what sort of periods of absence would someone suffering from the disability reasonably be expected to have over the course of an average year due to her disability?
What this practically means is that a worker’s absence history has been increased for reasons related to a disability and the employer knows this then there is still a requirement to make adjustments and in order to assess this will need to make a reasoned (which will usually require medical advice) assessment of what extent this has been impacted by disability and make adjustment accordingly (to the extent these are reasonable).
In either the ‘common’ or ‘hidden’ situation a disabled worker may nevertheless have a complaint that the employer failed to make reasonable adjustments and, by issuing a warning because of those absences has discriminated against the worker for a reason arising from disability. This also means raising this prospect can be an effective means by which a warning can be avoided in the first place.
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