Calculating disability-related sickness absence

All disability-related absence should be excluded when working out the total amount of an employee’s sickness absence, for the purpose, for example, of redundancy selection. A new case, Commissioner for HMRC v Whiteley [2013] UKEAT 0581/12/1005, suggests two alternative approaches for employers to adopt, either:

• looking in detail, with expert medical evidence, at each separate period of absence to try to assess which was due to the disability and which was not; or

• taking a more broad brush approach, using expert medical guidance to work out what level of disability-related absence could reasonably be expected of someone with the particular disability over the course of a year, and making a comparison between that average and the employee’s own record.

Whichever approach is adopted, there must be full collaboration with the disabled worker and their rep, and information must be treated sensitively, respecting the employee’s right to confidentiality.