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Posted 27 August 2013
by Martin Laver

Disability discrimination – disabilities and other conditions

Dealing with absence management can be challenging.  It can be particularly difficult where there are recognised disabilities (within the meaning of the Equality Act 2010).

It is relatively common scenario in the context of a capability process for there to be a disability covered by the Equality Act.  Generally, some allowances are made for the absences attributed to the disability, often as a reasonable adjustment.  However, frequently there are non disability-related absences as well and these can relate to conditions which are not covered by the Equality Act.  Those conditions can exacerbate the absences covered by the Equality Act.  How do you deal with that scenario? 

The recent Employment Appeal Tribunal case of HMRC –v- Whiteley provides useful guidance on the topic.

Mrs Whiteley was diagnosed with asthma, recognised in her case as a disability under the Equality Act.  In addition, Mrs Whiteley also suffered from a series of short term chest infections which were likely made worse, and so periods of absence lengthened, because of the disability.

The EAT says there are two ways of assessing what absence is and is not related to a disability.  Firstly, you can, with the benefit of specific medical opinion, look to establish whether each instance of absence relates to the disability or to another unspecified condition.  Alternatively, the employer can seek to establish the average length and number of absences typical for the particular disability in question.  Any additional absence can then be apportioned to non-disability reasons and included in the calculation.

Generally speaking, it is usually advisable to take the first option but, where there are real difficulties in establishing how a disability is affecting a pattern of absence, you may be able to rely on the alternative option – but there is likely to be more risk.

A capability process involving absences may involve a disability of which you were previously unaware and should be handled carefully.  In most cases that will involve obtaining a medical report about the employee from an independent occupational health advisor before taking any formal action.

For more information, or if you need assistance with a challenging employee, contact our specialist employment team on 01392 207020 or email

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About the author

Martin Laver

Partner and Solicitor

Partner in the commercial litigation team specialising in disputed trusts and Wills