Mrs Whitley had worked for the HMRC since 1978 – she suffered from a disability (severe asthma) which her employer knew about. In 2010, Mrs Whitley had 15 days absence due to ill health – this triggered a formal review of Mrs Whitley’s attendance record which resulted in her receiving a formal warning about her sickness absence. Mrs Whitley was unhappy about this – she argued that her employer’s absence policy was discriminatory as it did not take account of employees with disabilities and the HMRC had not made reasonable adjustments in light of her disability. The Tribunal decided that the HMRC had operated a discriminatory sickness absence procedure because, in Mrs Whitley’s case, it had failed to take account of any time off caused by her severe asthma. The Tribunal said that the HMRC should have looked at Mrs Whitley’s episodes of sickness absence to see which ones related to her disability; if there was any doubt about this issue, medical advice should have been obtained. Any periods of absence attributable to Mrs Whitley’s severe asthma should then have been disregarded from her overall sickness record so that the HMRC had a clearer idea of her sickness absence. In summary, if you have an employee with an unacceptable sickness record who suffers from a disability, do not jump to a conclusion about that record – look into the matter, taking medical advice where appropriate then disregard any episodes caused by the employee’s disability before taking formal action against them.
If you require any employment advice or representation, whether you are an employer or employee, feel free to contact Alan Davidson for a consultation: 01756 692 869.