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Reasonable adjustments to sickness absence policies: two possible approaches for employers

The EAT has held that a tribunal erred in finding that HMRC, in issuing a warning to an asthmatic employee under its sickness absence policy, breached the duty to make reasonable adjustments for disabled employees under the Equality Act 2010. The tribunal's decision could not stand because it had incorrectly construed expert evidence as stating that asthma sufferers are more susceptible than others to viral respiratory infections and chest infections. The EAT remitted the case to a fresh tribunal on that basis.

More interestingly, the EAT stated that there are "at least two approaches" that an employer can take, when applying a sickness absence policy, to make allowances for an employee whose disability increases their chances of contracting other "ordinary ailments". It might decide to assess precisely the level of absence that is attributable to the relevant disability. Alternatively, it might consider what level of absence the relevant disability might reasonably cause someone to have over the course of an average year. (Commissioners for Her Majesty's Revenue & Customs v Whiteley UKEAT/0581/12.)

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