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Equality issues in absence management procedures
[ch 8: pages 270-271]Equality issues can be very important when challenging changes to absence management procedures. Employers must take care to avoid indirect sex discrimination, especially since most carers are female, as well as disability discrimination, as demonstrated in this recent example:
The Land Registry discriminated unlawfully against disabled workers when it introduced a new procedure to reward good attendance with an annual cash bonus. Workers who had been given a formal warning for poor attendance during the year were not eligible for the bonus. There was no exception for disabled workers, even where absences were disability-related. The EAT ruled that this was an unlawful breach of section 15 of the Equality Act 2010. The procedure was also flawed because it failed to take into account improvements by employees to their attendance after being given a warning, even though the whole purpose of the scheme was supposed to be to promote good attendance.
Land Registry v Houghton [2015] UKEAT/0149/14/BA
Irrespective of any issues of discrimination, a reward-based policy such as that used in the Land Registry case has other unforeseen consequences, such as encouraging workers back to work before they are well.
Equality issues are important in the implementation of absence management procedures as well as their design. The law allows employers to take all absences into account when implementing an absence policy, including disability-related absences, but they must make reasonable adjustments to the procedure for disabled workers, which could include modifying triggers or disregarding periods of disability-related absence for dismissal purposes. All workers will suffer stress and anxiety as a result of a disciplinary attendance procedure, but disabled workers are likely to suffer more, because their condition is likely to result in more absences (Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265).
To be able to decide how to approach disability-related absence in the context of attendance management, the employer first needs a reliable and consistent policy for identifying when absence is 'disability-related'. The EAT has said that employers can choose between examining each separate period of absence, or working out what level of disability-related absence would reasonably be expected from someone with the relevant disability and disregarding that much absence (Commissioner for HMRC v Whiteley [2013] UKEAT 0581/12/1005). Whatever approach is adopted, the process must be informed by expert medical guidance, with full consultation with the disabled worker and their rep, and confidentiality must be respected.
Some employers use trigger mechanisms such as the “Bradford Factor” to manage absence. This is a mechanism designed to give more weight to short than long-term absences. It works by multiplying the square of the number of periods of absence by the number of days. For example, one period of five days’ absence gives a Bradford factor of 5 (1 squared x 5 = 5), whereas five periods of one day’s absence give a Bradford factor of 125 (5 squared x 5). This approach could place disabled workers at risk of discrimination if their disability leads to frequent short-term absences.