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Disability discrimination: Sickness absence triggers

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By Ceri Fuller & Hilary Larter


Published 11 December 2019


An employer who did not adapt the sickness absence trigger point for a disabled employee failed to make reasonable adjustment.

The facts

Miss Ward suffers from ME/Chronic fatigue syndrome and considered disabled for the purposes of the Equality Act 2010. Occupational health advised her employer, Northumberland Tyne & Wear NHS Foundation Trust, on several occasions 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…”. For four years, 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 claimed in the employment tribunal that she had been unfairly dismissed, that she had been discriminated against because of something arising in consequence of her disability and that the Trust had failed to make reasonable adjustments. The employment tribunal upheld these claims.

The Trust appealed to the EAT, which confirmed the employment tribunal’s decision.

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.

What does this mean for employers?

Employers must make sure that they consider what adjustments they should be making to their sickness absence management procedures when they are managing employees who are, or may be, disabled. Policies should be drafted to make clear that reasonable adjustments will be made for disabled employees. Furthermore, when removing any reasonable adjustments employers must carry out an analysis of why the adjustment is no longer reasonable and also consider whether there is a less discriminatory way of implementing a procedure, which should include considering whether the existing reasonable adjustment should be removed at all. Consideration of a request for an adjustment must take into account the particular employee’s circumstances including the likely effectiveness of the adjustment in deciding whether the request is reasonable.

Northumberland Tyne & Wear NHS Foundation Trust v Ward UKEAT/0249/1/DA