Dealing with sickness absence can be challenging and an effort for businesses to be seen to be treating everyone equally – but when an employer fails to adapt their sickness absence ‘trigger point’ for a disabled employee, they may be  discriminating by failing to make a reasonable adjustment.

What are the facts?

Miss Ward suffers from ME/chronic fatigue syndrome and was considered disabled for the purposes of the Equality Act 2010.

Occupational Health advised her employer, Northumberland Tyne & Wear NHS Foundation Trust, on several occasions that Miss Ward was likely to have a higher number of sickness related absences than other employees.

Like many employers, their sickness absence management policy included ‘trigger points’ that result in sickness absence monitoring. The trigger points during Miss Ward’s employment included ‘3 periods of absence within a 12-month rolling period…’. For four years, the Trust made an adjustment to the trigger points so that she could have up to five absences in a 12 month period before triggering the policy, rather than three absences. This adjustment seemed to operate successfully.

However, the adjustment was removed in 2015. Other adjustments were put in place, such as a reduction in working hours and allowing flexible working, but Miss Ward was unable to meet the attendance requirements under the sickness absence management policy. The absence management process eventually led to her dismissal.

Miss Ward claimed she had been unfairly dismissed, that she had been discriminated against because of something arising in consequence of her disability and that the Trust had failed to make reasonable adjustments. The Tribunal upheld these claims.

The Employment Appeal Tribunal confirmed the Tribunal’s decision.

The adapted policy using extended trigger points that had been used for four years avoided the disadvantage caused to Miss Ward by the Trust’s usual sickness absence triggers.

While employers do not have to continue with adjustments that have been made historically if they are able to show that there is some change in circumstance rendering the adjustment unreasonable. The Trust had not been able to do this. The other adjustments, were not enough to comply with its duty. The adapted absence management policy was a more effective adjustment that could reasonably have continued.

What can employers learn?

Employers must consider what adjustments they should make to their sickness absence management procedures when they are managing employees who are, or may be, disabled.

Policies should make clear that reasonable adjustments will be made for disabled employees.

When removing a reasonable adjustment, employers must be able to show why the adjustment is no longer reasonable and also consider whether there is a less discriminatory way of implementing a procedure or policy, which should include considering whether the existing reasonable adjustment should be removed at all.

Northumberland Tyne & Wear NHS Foundation Trust v Ward UKEAT/0249/1/DA

You can read the judgment here.

 

 

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