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Disability Discrimination: Approach to Reasonable Adjustments for Absence

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Thanks to Paul Smith of Broadway House Chambers for preparing this case summary

In the context of making reasonable adjustments, what approach should be taken by employers in respect of employees whose disability interacts with other ailments?

There are two alternatives, says the EAT in HMRC Commissioners v Whiteley.

In this case the employee's disability was asthma. Her condition was exacerbated by respiratory infections which resulted in some absences from work. An employee being absent through illness for 10 days or more in a year would trigger a policy whereby the employer would consider subjecting the employee to disciplinary action. The employee complained that this policy put her at a disadvantage and that the employer had, accordingly, failed to make reasonable adjustments.

Mitting J (presiding) set out two possible avenues an employer could take when dealing with this type of situation. Firstly, they should consider, with expert evidence, the periods of absence and attempt to analyse with precision what was attributable to disability and what was not. Alternatively, they should ask, and conclude with proper information, what sort of periods of absence would the employee reasonably be expected to have over the course of an average year due to her disability.

The appeal itself concerned the employment tribunal's misinterpretation of the expert evidence and the matter was remitted to be heard afresh, but the guidance provided by the EAT is of wider application and should prove valuable to employers facing this difficult problem.