An employment appeals tribunal (EAT) judge has outlined how employers could develop a strategy to accommodate employees with disabilities that interact with other illnesses.
Mr Justice Mitting outlined two possible ways to assess the necessary reasonable adjustments to deal with such a situation.
- First, 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.
However he noted that these were not the only courses that organisations could take.
Analysing the ruling, Broadway House Chambers barrister Paul Smith noted that although the case itself was less widely relevant, the remarks were crucial to help employers understand their responsibilities.
He said: "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."
The statement was made in relation to the case of HMRC Commissioners v Whiteley.
Smith explained: "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."
Alongside his ruling to consider the expert evidence again, Justice Mitting set out his guidance to support other similar situations.
"There are, in principle, at least two possible approaches to making allowances for absences caused by a disability that interacts with other ordinary ailments," he said.
"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?" he added.