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Equality issues in absence management procedures
[ch 8: pages 274-275]Equality issues can be very important when challenging changes to absence management procedures. Attendance management policies must not discriminate against disabled workers, whether in their design or their implementation. Here is a clear 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 if absences were disability-related. The EAT ruled that this was an unlawful breach of section 15, Equality Act 2010. The procedure was also flawed because it failed to take into account improvements made 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
The law allows employers to take all absences (including disability-related absence) into account when implementing an absence procedure, but they must make reasonable adjustments when applying the procedure to disabled workers. Whether an adjustment is reasonable will depend on the facts of a particular case. Possible adjustments include, for example, modifying trigger points for disciplinary action so as to disregard some or all disability-related absence, or ignoring disability-related absence when awarding attendance bonuses. In Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265, the Court of Appeal pointed out that while all workers suffer stress and anxiety as a result of a disciplinary attendance procedure, disabled workers are likely to suffer more, because their condition is likely to result in more absences, placing them at greater risk of penalties and eventual dismissal.
To differentiate disability-related absence from other absences in the context of attendance management, the employer needs a consistent policy for identifying these absences. The EAT has said that employers can choose between examining each period of absence, or establishing what a “reasonable” level of disability-related absence looks like for someone with that condition and then disregarding that much absence (Commissioner for HMRC v Whiteley [2013] UKEAT 0581/12/1005). Whatever approach is adopted, the employer must consider expert medical guidance, and consult fully with the disabled worker and their rep. Confidentiality must be respected.
Some employers manage absence using methods such as the “Bradford Factor”. 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 some disabled workers at risk of discrimination if their disability leads to frequent short-term absences.
Employers must also take care when designing sickness absence procedures to avoid direct or indirect sex discrimination, especially since most carers are female, as well as pregnancy discrimination (see page 214, Chapter 7).
In 2016, the Equality and Human Rights Commission (EHRC) produced new guidance and tools to help employers draw up workplace policies that address mental health at work — Mental health is your business. It includes guidance on the employer’s health and safety obligations and on the Public Sector Equality Duty (see page 257, Chapter 7).