Long term sickness absence can be a very big problem for small to medium size employers especially if that employee is a key member of staff such as the sales manager, company accountant or a senior member of the production team. Some companies use the “Bradford Factor” as a means of identifying periods of sickness absence which in turn triggers disciplinary action.
The following two tribunal cases demonstrate that this approach must be used with extreme caution especially where there is an intimation of a disability. Whilst employers are not expected to necessarily demonstrate any medical knowledge, a certain level of common sense is expected.
The real danger is to allow any frustrations to overrule that common sense and leap in with both feet without due consideration. Where there is a history of long term sickness or frequent short periods of sickness absence and disciplinary action, possibly leading to dismissal, is being considered as an outcome, you would be ill advised to proceed without the benefit of supporting medical evidence first. The GP report may contain nuggets of information which if ignored could be very costly in the event of termination of employment. There is no cap on the compensation that could be paid to a dismissed employee in cases of sex, race, age, religious or disability discrimination. The court will expect employers to make ‘reasonable adjustments to the employees duties in order to preserve that individual’s employment’.
An employer failing to make reasonable adjustments under s.20 of the Equality Act 2010 is a cornerstone of many disability discrimination claims. The reasonable adjustments duty is highlighted when an organisation implements a way of doing things that puts disabled staff at a substantial disadvantage compared with their colleagues. It becomes even more problematic, however, when common day-to-day afflictions that we all suffer from means further adjustments and considerations have to be taken to accommodate disabled employees, as the recent Employment Appeal Tribunal decision in the case HMRC Commissioners v Whiteley demonstrates.
Whiteley had worked for HMRC for 32 years. She suffered from asthma and between 2005 and 2010, she accumulated 54 days’ sickness absence, of which 13 were due to respiratory infections.
According to one of HMRC’s policies (see “Bradford Factor” principal above), sickness absences of more than 10 days in a single year were subject to further consideration by the employer. Exceeding the 10-day limit could spark disciplinary procedures, beginning with warnings and ultimately culminating in dismissal. In 2010, when Whiteley reached 15 days’ sickness absence in less than a year, HMRC issued her with a formal warning.
She complained to the employment tribunal that HMRC had failed to make proper adjustments under the Equality Act. She felt disadvantaged because of her disability – asthma. At the time when HMRC decided to issue the formal warning, it had no medical evidence but relied entirely on notes recording Whiteley’s own reports about her condition. The employer discounted three days out of the 15 days’ absence – leaving Whiteley’s absence still over the 10-day limit.
At the tribunal hearing, medical evidence was produced to say that 6-8 viral infections each year was to be expected for an individual with asthma. The condition itself would most likely exacerbate what may otherwise be merely a common cold, but no evidence suggested that suffering from asthma in itself would make anyone more susceptible to viral infections than others.
The employment tribunal decided – erroneously – that the medical evidence indicated that an asthma sufferer was more susceptible to a viral infection than a non-asthmatic person. Accordingly, it rejected HMRC’s meagre 3-day adjustment of the overall amount of sickness absence as inappropriate, ruling that all absences relating to viral or chest infections should have been discounted. The employer had, apparently, failed to make reasonable adjustments and should have sought relevant medical evidence before issuing the formal warning.
At the Employment Appeals Tribunal (EAT)
HMRC appealed and successfully demonstrated that the medical evidence before the tribunal had been misunderstood. The EAT allowed the appeal and sent the case back to a fresh tribunal to rehear the claim.
The EAT did, however, make some general observations about cases of this type. Picking up on the point mentioned earlier, the EAT recognised that an employer should look in detail at periods of absence to see which might be identified as disability related, and seek medical evidence to try and determine how often a person suffering from a disability is likely to be absent in a given year and to obtain medical advice about an employee’s disability and any impact it might have on their sickness absence record. A reasonable adjustment in the circumstances of this case, for example, would be to discount any disability-related absence or disregard any disciplinary proceedings arising out of a disability-related illness.
Stress, however, is unlike any other physical condition (for example, asthma). A broken arm or leg will repair in a given number of weeks and the employee will be back to normal. Stress, especially “Work Related Stress” is a vexed question for most employers. GP`s are too quick to issue a medical certificate for “Work Related Stress” based on the say so of their patient when it may in fact relate to a relationship breakdown and nothing to do with work at all. Be wary of challenging the GP`s medical opinion.
The case of Croft Vets Ltd v Butcher highlights a disability situation where the employers failure to pay for psychiatric treatment was regarded by the EAT as discriminatory.
Here the EAT had to decide whether an employment tribunal was right to find that an employer failed in its duty to make reasonable adjustments for a disabled employee suffering from depression when it did not act on a doctor’s recommendation to pay for private psychiatric services.
Butcher was a Finance and Reception Manager at a veterinary practice, and suffered from work-related stress and severe depression. Having been absent from work for a number of months, she was assessed on 3 August by a consultant psychiatrist to see if there were any steps that could be taken to facilitate her return to work. This was the correct course of action taken by the employer. The Psychiatrist recommended paying for specialist cognitive behavioural therapy and a further six psychiatric sessions. The employer did not act on his recommendations and Butcher resigned on 23 November claiming disability discrimination (failure to make reasonable adjustments) and constructive dismissal.
The Employment Tribunal upheld Butcher’s disability claim. It found that a provision, criteria or practice (PCP) – her returning to work to perform the essential functions of her job – placed her at a substantial disadvantage, and that the employer had provided no reasons for failing to make the reasonable adjustments recommended by the psychiatrist to alleviate this disadvantage. The tribunal also upheld her constructive dismissal claim. The employer’s failure to follow medical recommendations, without any explanation or consultation, amounted to a fundamental breach of trust and confidence. The employer appealed.
At the EAT
The EAT rejected the appeal. The tribunal had correctly identified the relevant PCP and it was clear from medical reports this would place Butcher at a substantial disadvantage. This triggered the duty to make reasonable adjustments, and by not paying for Butcher to have private psychiatric sessions, the employer had failed in its duty to prevent the PCP from disadvantaging her. Medical opinion had confirmed that a specific form of support could enable Butcher to return to work and significantly improve her work-related depression. This was a reasonable adjustment that could have reduced the substantial disadvantage caused by the PCP. The employer’s conduct amounted to a fundamental breach of trust and confidence so this was also a constructive dismissal even though the consultant Psychiatrist only gave a 50% chance of success, he believed it would certainly lead to a significant improvement in Butcher`s depression and subsequent quality of life.
In a nutshell employers should:
- Examine the extent of any recommended reasonable adjustments, including costs and the impact on the working environment. Part of this assessment must involve reference to the duty to make reasonable adjustments covered in the European Human Rights Commision Employment Code (chapter 6)
- Focus on the actual steps recommended and how this will reduce the disadvantage, using the code for guidance. In this case, the EAT referred to an example of a reasonable step from the code: “giving, or arranging for, training or mentoring” so that a disabled person could return to work after a six-month absence due to a stroke, with the employer paying for the work mentor, and allowing the disabled person time off for the mentoring
- Conduct an assessment, as the code points out, in consultation with the disabled person and implement any adjustments necessary in a timely fashion (neither of which happened in this case)
- Obtain a medical report
- Ignore any periods of absence which might be disability related
- Act on any medical recommendations
The law does not permit an employer to justify failing to comply with a duty to make a reasonable adjustment.
The question is whether a step is reasonable. This is largely up to the court to decide. If in doubt, employers should refer to the current code (paragraph 6.28) for factors which can be taken into account.
This case was decided under the Disability Discrimination Act 1995 and the code of practice in force at the time, but there are no material differences in the Equality Act 2010 and the revised code.