Discounting disability related sickness absence is an issue that employers frequently need to consider. However, there is often uncertainty about when such absence should be discounted and the rationale for doing so. Organisations frequently rely on absence management policies to monitor employee attendance and address patterns of sickness absence. However, when absence is connected to a disability, it is all the more important to obtain the right information and use it effectively. This blog explores what discounting disability related sickness absence means, why it matters, and how employers should approach reasonable adjustments, discrimination arising from disability, and accurate absence recording practices.
Contents
Disability related sickness absence refers to time off work that is directly linked to an employee’s disability. This may include absences for treatment, recovery periods, flare-ups of chronic conditions etc. Unlike general sickness absence, these absences are intrinsically connected to the employee’s disability and in such circumstances the employee is entitled to various protection under the Equality Act 2010.
Employers often operate trigger-based absence management systems—for example, initiating formal procedures after a set number of days or occasions of absence. While these systems are widely used and straightforward, applying them rigidly to disabled employees without fully considering potential reasonable adjustments can lead to outcomes, such as a decision to dismiss, which an Employment Tribunal may conclude to be unfair and discriminatory. For more information on trigger points and sickness absence, read our blog how many sick days before a disciplinary?
Discounting disability-related sickness absence means that employers either wholly or partially exclude such absences when assessing attendance triggers.
The legal framework
Disability is a protected characteristic in the Equality Act 2010, and disabled employees are entitled to protection from various forms of discrimination. The following are particularly relevant:
- The duty to make reasonable adjustments
- Discrimination arising from disability
In addition to the issue of disability, a dismissal may be found to be unfair if an employer fails to take steps to, for example, find out what the cause of the absences are and how long those absences are likely to last for.
The relevance of reasonable adjustments
The duty to make reasonable adjustments requires employers to take proactive steps to remove or reduce the disadvantage experienced by the particular employee. In the context of absence management, reasonable adjustments may include:
- Discounting some or all disability-related absences from trigger points
- Adjusting absence thresholds for disabled employees
- Allowing flexible working arrangements to reduce absence
- Modifying duties to mitigate the effects of the disability
- Providing additional support or equipment
These examples are illustrative only. What constitutes a reasonable adjustment will depend on the specific disadvantage experienced by the individual employee and the particular circumstances of the case. It is therefore not possible to provide an exhaustive list of what will or will not amount to a reasonable adjustment in every situation.
Discounting disability related absence is a potential reasonable adjustment. However, there is not a legal obligation to discount disability related absence. The key question is whether the adjustment is reasonable in light of factors such as operational impact and the effectiveness of the adjustment in reducing the particular disadvantage.
It is also important to engage in meaningful dialogue with the employee. Consultation ensures that any adjustments are tailored to individual needs and demonstrates that the employer is acting appropriately.
Discrimination arising from disability
Discrimination arising from disability occurs when an employer treats an employee unfavourably because of something arising in consequence of their disability, and the treatment cannot be justified as a proportionate means of achieving a legitimate aim.
For example, dismissing an employee due to high levels of absence may well constitute unfavourable treatment.
In the context of sickness absence, the “something” is typically the absence itself.
To successfully defend such a claim, the employer must demonstrate that their actions were justified. This involves showing:
- A legitimate aim(s) (e.g. ensuring effective service delivery, ensuring the effective use of resources etc.)
- That the action taken was proportionate in order to achieve those aims
Where the unfavourable treatment is dismissal, the question of proportionality will arise in determining whether the dismissal was a proportionate means of achieving a legitimate aim. In that assessment, a tribunal is likely to consider factors such as the impact of the absence on the organisation, the resources of that organisation and any relevant medical advice. Moreover, the extent to which disability related absence has been discounted, or whether standard trigger points have been adjusted, may well be relevant.
Practical considerations for employers
Implementing a fair and compliant approach to disability related absence needs to be considered with care. Employers should adopt a structured and consistent methodology, whilst providing flexibility to ensure that situations are addressed appropriately. The following elements may well be appropriate:
- Policy clarity: Absence management policies should refer to the ways in which absence will be managed, such as trigger points, and also highlight a commitment to complying with legislation, such as the Equality Act by, for example, implementing reasonable adjustments. It may also be appropriate to highlight flexibility so that the policy can take individual circumstances into account.
- Manager training: Line managers must understand how to identify potential disability-related absence, how to record such absences and how disability related absence may affect the absence management process.
- Medical input: Occupational health assessments can provide valuable insight into identifying appropriate next steps. Furthermore, a sickness absence process may refer to the circumstances when the advice from occupational health will be sought.
- Adopt a tailored approach: Avoid blanket rules; what is appropriate will depend on individual circumstances and it is important that the process reflects that.
Employers should also be mindful of the balance between supporting employees and maintaining business continuity. Discounting absence does not mean ignoring attendance issues altogether. Rather, it involves a nuanced approach that distinguishes between disability related and non disability related absence. This information may well assist in identifying measures to reduce absence levels.
Without clear records, employers may find it difficult to identify, or recall, the reasons for the absence and therefore are unable to make informed decisions about next steps.
Why accurate recording natters
Recording disability related absence separately allows employers to:
- Identify which disabilities apply and when
- Make informed decisions about reasonable adjustments
- Ensure fair application of absence triggers
Employers may find it helpful to adopt the following practices when recording disability related sickness absence:
- Obtain appropriate information
Employers should seek to understand whether an absence is related to a disability. This may involve discussions with the employee, obtaining medical evidence or occupational health input. Depending on the organisation, there may also be systems in place which enable the employee to record the reason for the absence themselves, and the absence is discussed subsequently.
- Use clear categorisation
Absence recording systems should allow for clear differentiation between types of absence, with particular emphasis on accurately recording the reason for each period of absence. There may be situations where an employee with a disability is absent for reasons unrelated to that disability (for example, a common illness such as flu or a stomach bug). Equally, there may be other periods of absence that are directly attributable to the employee’s disability and that should be accommodated within the classification.
- regularly review records
Regular reviews can help identify whether current adjustments are effective or whether other interventions may be appropriate.
- Align records with decision making
A basic example would be to be mindful of absence levels when escalating a sickness absence process. Similarly, if the records refer to particular disabilities, or disability related absence generally, it may be appropriate to gain advice from Occupational Health, which can be used to inform next steps.
Whatever decisions are taken regarding absences they should not be based solely on a number. Plotkin & Chandler works exclusively in the areas of HR and employment law, supporting both individuals and organisations.
If you are an organisation, we can assist with all aspects of the process for example HR documentation, HR consultancy and training or defending an Employment Tribunal claim.
If you are an individual who has been dismissed and you would like to discuss bringing an Employment Tribunal claim, we would be pleased to hear from you. To find out more about our services for individuals click on the link.
To discuss your needs and the ways that we can help call us on 020 3923 8616 or email us on info@plotkinandchandler.com
