Posted on: Jan 23,2020
In Northumberland Tyne & Wear NHS Foundation Trust v Ward the Employment Appeal Tribunal (EAT) ruled that the employer who did not adapt the sickness absence trigger point for a disabled employee, had failed to make a reasonable adjustment.
Miss Ward suffers from ME/Chronic fatigue syndrome and was considered disabled under section 6 of the Equality Act 2010. Occupational health advised Northumberland Tyne & Wear NHS Foundation Trust (the Trust) that Miss Ward was likely to have a higher number of sickness related absences than other employees. Her employer’s sickness absence management policy includes “trigger points” that result in the application of various stages of sickness absence monitoring. The trigger points during Miss Ward’s employment included “3 periods of absence within a 12-month rolling period…”.
Starting from 2011, the Trust made an adjustment to the trigger points for Miss Ward so that she could have up to five absences in a 12 month period before triggering the policy, rather than three absences. This adjustment seemed to operate successfully. However, the adjustment was abruptly removed in 2015. Other adjustments were implemented, such as a reduction in working hours and allowing flexible working, but Miss Ward was unable to meet the attendance requirements under the sickness absence management policy. She was subjected to the various stages of the absence management process, which eventually led to her dismissal.
Miss Ward sued the Trust for unfair dismissal, discrimination because of something arising in consequence of her disability, and failure to make reasonable adjustments. She won in the employment tribunal and the Trust appealed to the EAT.
The EAT did not agree with the Trust and confirmed the employment tribunal’s decision. The EAT said that the adapted policy using extended trigger points that had been used for four years avoided the disadvantage caused to Miss Ward by the Trust’s usual sickness absence triggers. While employers do not necessarily have to continue with adjustments that have been made historically, as the adjustments may cease to be reasonable, in removing any adjustment the employer should be able to show that there is some change in circumstance rendering the adjustment unreasonable. The Trust had not been able to do this. Although the Trust had made other adjustments, this was not enough to comply with its duty to make reasonable adjustments because the adapted absence management policy was a more effective adjustment that could reasonably have continued.
This means that employers must make adjustments to sickness absence management procedures for employees who are, or may be, disabled. Policies should be drafted to make clear that reasonable adjustments will be made for disabled employees. When removing any reasonable adjustments employers must risk assess the removal for discrimination. Ultimately, the employee’s individual circumstances must be taken into account.
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