It is well known that employers have an obligation to make reasonable adjustments for disabled employees.  This is a duty that arises where an employer’s provision, criterion or practice puts a disabled employee at a substantial disadvantage compared to those who are not disabled.

Employers must be careful not to place disabled employees at a disadvantage with regard to their sickness absence policy, especially as - depending on the disability - such employees may need to take more time off than other workers.  A recent case highlights what might be considered to be a reasonable adjustment when applying the terms of a sickness absence policy to a disabled person.

In this case, an employee suffered from asthma.  The employer’s sickness absence policy stated that when the employee had more than 10 days’ absence it would trigger the disciplinary process.  The employee took 15 days’ sickness absence, 14 of which were because of viral infections and a chest infection.  The employer took the employee’s asthma into consideration and reduced the 15 days’ absence to 12, but because it reached the trigger point of 10 days a warning was issued.

The employee complained to the employment tribunal.  Evidence was brought that showed it was normal to suffer an average of six to eight viral illnesses each year and although some of these would be easily manageable for a person with asthma, in others, symptoms could be exacerbated and may require a few days away from work three or four times a year.

The employment tribunal concluded that the employee’s asthma made her more susceptible to viral infections and decided that the employer should have regarded all absences due to viral infections as directly related to her asthma, and discounted them.

The employer appealed to the employment appeal tribunal, which decided that the original tribunal had misread the medical evidence.  It said that there were two possible approaches that employers could adopt when seeking to make allowances for sickness absences caused by an employee’s disability and other common ailments such as ‘flu and colds.

The first approach was to consider the periods of absence in detail and, if necessary, use expert advice to assess precisely the level of absence attributable to the disability.  The second approach would be to consider what level of absence that particular disability might reasonably cause over a one year period.

The suggestion here is that employers need not ignore all disability related absences, rather they should make their decision based upon the facts of the case.  Employers need only ignore the ‘expected’ level of absence for that particular disability.  But be warned, this approach may not be reasonable in every case. For example, it would probably be considered unreasonable to take disciplinary action against a long serving employee who took a month’s sick leave because of a disability related ailment. l