Is it necessary for employers to adjust their sickness absence policy to take account of an employee whose absence is disability-related?
In some instances, disabled employees are more likely than others to have significant sickness absence. Therefore, the application of sickness absence policies which could potentially lead to dismissal will place them at a substantial disadvantage and the duty to make reasonable adjustments will arise
Under the Equality Act 2010, employers have a duty to make reasonable adjustments where a “provision, criterion or practice” (PCP) of the employer puts a disabled employee or job applicant at a substantial disadvantage compared to others. A failure to do so will amount to disability discrimination.
Reasonable adjustments can be wide ranging and may involve making adjustments to the working environment, working arrangements and/or providing aids. Whether an adjustment is reasonable is not always clear as they can be substantial or minor, and what is reasonable will depend on a number of factors and will vary from one organisation to another.
An employer may have to consider if their duty to make reasonable adjustments requires them to make adjustments to their absence management policies; in particular, whether the “trigger point” for taking action under an absence management policy should be adjusted to take account of disability-related absences.
This month, an Employment Appeal Tribunal (EAT) has clarified that employers are not required to adjust the trigger point for implementing absence control policies to take account of disability-related absences.
The EAT has held that a disabled employee who had been absent from work for the same amount of time as another employee but for a non-disability-related reason would be treated the same way under the absence management policy. Disabled employees were therefore not placed at a substantial disadvantage by such a policy and the “trigger points” in comparison with persons who were not disabled, i.e. there was no indirectly discriminatory ‘PCP’ which meant that no adjustments were required.
Employers therefore do not need to adjust the trigger point for invoking sickness absence management procedures where absence is disability-related – the duty to make reasonable adjustments does not extend to these circumstances.
However, employers should remain mindful of the duty to make reasonable adjustments where an employee is absent from work for a disability-related reason.
The EAT in this case concluded that the purpose of the Equality Act, and the duty to make reasonable adjustments, is to enable an employee to return to work or carry out their work, rather than facilitating absence from work. Employers should keep this in mind in assessing whether a duty has arisen and whether proposed adjustments are reasonable.
In a 2012 case, the EAT set out two possible approaches that an employer may take when applying a sickness absence policy to disability-related absences:
- To consider the periods of absence in detail (and, if necessary, with expert evidence) to assess precisely the level of absence that is attributable to disability.
- Having considered the proper information, to consider what level of absence would someone with a particular disability reasonably be expected to have over the course of an average year due to that disability (an approach that “will be of greater attraction to the employer”).
Employers might be attracted to the idea that, when applying sickness absence policies to disabled employees, they can disregard reasonable absence linked to their particular disability over an average year. However, it remains questionable how employers will make this assessment and whether this approach will be “reasonable” in every case.
As always, if you have a situation similar to that described in this article, please contact a member of the HR Consultancy team for support.