According to a recent study, nearly one in five workers with diabetes have been disciplined by their employer for taking time off from work.
The survey of UK employees living with both Type-1 and Type-2 diabetes suggested that 19 per cent had faced disciplinary action as a result of missing work as a result of the disease. Another 25 per cent claimed that they had been questioned over sick days they had taken, while 12 per cent said they had been refused time off, despite this being prohibited by employment law which protects people from discrimination as a result of the condition.
The figures have prompted calls for more to be done to tackle workplace discrimination for those suffering from diabetes and legal experts have said that employers should make sure that their policies and practices in this area comply fully with existing employment law.
Here, Stephen Woodhouse, a solicitor and specialist in employment law at the national firm, Stephensons, provides a guide for employers and an outline of their obligations as well as tips for striking a balance between absence management and being fair to employees.
Employee absence can, of course, have a detrimental impact on productivity and profitability, costing businesses millions of pounds each year. However, policies which are too draconian or fail to deal with disability in the proper way can cost firms thousands in legal fees. It is therefore vital that employers are aware of some of the legal issues in this area and can in turn can apply a suitably robust, yet fair absence management policy.
What is the law in this area?
There are no specific laws which govern absence management per se, however disabled employees have protection from discrimination under the Equality Act 2010. In order to enjoy such protection the employee needs to establish that they have a ‘disability’.
However, the law at present does not automatically recognise diabetes as a disability. Instead, the burden is on the employee to show that they have a condition which meets the relevant legal test; do they suffer from a “long term” impairment which has a “substantial and adverse” impact on their day to day activities? If the employee satisfies this, they will be protected from discrimination.
If the employee can show that they were disciplined “because of” their disability then this will give rise to a discrimination claim. However, employees will have difficulty proving the same unless they have explicit evidence that the disability itself was the cause of the sanction.
An easier test to satisfy the situation is where a disabled employee argues that he has suffered discrimination because of “something arising in consequence of his disability” namely his sickness absence. However, the employer can rebut this complaint if the employee can show that the decision to sanction them due to sickness absence was a proportionate means of achieving a legitimate aim.
What policies should be put in place?
It is important that businesses have clear and accessible policies and procedures in place to manage sickness absence. The policies should make clear the expectations on attendance and include a clear absence reporting process.
They should also explain the long term process of absence management. This includes identifying the trigger points where absence will be deemed excessive and a disciplinary sanction may be imposed. However, it is important that any absence is managed in the right way; employers should avoid a one size fits all approach. If an employer applies a policy to all which disproportionately affects a disabled employee then this can give rise to a claim for indirect discrimination.
Where those suffering with diabetes have a number of short term absences or a significant period of time off work due to their condition, this does not exempt them from addressing this. However, equally the employer must judge each situation on a case by case basis and consider alternative steps they can take to assist the employee.
What allowances should HR professionals and companies be making?
Indeed, under the Equality Act 2010, employers have a positive obligation to make reasonable adjustments to their policies where disabled employees are put to a substantial disadvantage because of their condition. In these circumstances a reasonable adjustment could be to extend company sick pay for a disabled employee or to relax the potential disciplinary sanction imposed upon the employee if they are disabled.
However, the Equality Act 2010 seeks to strike a fair balance. If a certain adjustment would remove the disadvantage suffered by the disabled employee, but it is not reasonable from the employer’s perspective then the law does not force it upon them. Some of the factors affecting reasonableness include:
- Size of the business
- Disruption or impact on productivity of the employee or wider business
On a practical level it is important for employers to hold return to work meetings. These meetings should take place as soon as practicable following the end of the period of sickness absence. Managers holding these meetings should have regular training and guidance on how to approach the meeting. It should explore the nature of the illness, any causes/trigger for the conditions, any steps which the employee could take to alleviate this, any changes which the employee’s role or duties would improve attendance.