Employer Found to have Unfairly Dismissed and Discriminated After Failing to Consider Asthma-Related Absences

In this recent case, the employer was aware of the health condition (that did in this case amount to a disability under the Equality Act 2010) of their teacher, being asthmatic that was present from 2013. The employee in question subsequently had numerous asthma-related absences from that period onwards - exacerbated by damp, mouldy classrooms and the use of aerosols in the employer’s schools.

Whilst the employer did take some steps to investigate what could be done to support the employee (as they were reasonably obliged to do so in law) despite that, in terms of actual reasonable adjustments, these were not always implemented, or, were not implemented consistently, thus leading to her having further asthma-related absences. In failing to assess the condition/disability properly, and in not consistently making and showing that they had made reasonable adjustments to help the employee, the employer had indeed failed to make satisfactory reasonable adjustments in law and, consequently, a valid and costly claim was progressed against them.

In addition the employer clearly chose the wrong process to manage this issue by:

• using and escalating the employee through their absence management warning system;
• without proper adjustment for the disability;
• rather than managing this as a disability - related absence issue first, which would have in turn ensured a clear medical and occupational health assessment and then a plan for reasonable adjustments and risk reduction; and
• only then, if appropriate, would an assessment of capability and absence management on its own be something to consider.

Having failed to follow these steps, the use of the absence management system was a further act of disability discrimination.

Furthermore, the employer’s own Occupational Health recommended to the employer that it would be a reasonable adjustment for the school to not consider asthma - related absences in the said absence procedures. This was not implemented and, following further absences for unrelated health conditions in the following academic year, the employee was dismissed.

Holding that the dismissal was both unfair and discriminatory, the Employment Tribunal noted that the unfairness of the dismissal was “compounded” by the fact that, when the decision was taken, her asthma-related sickness absences were seemingly no longer an issue. However, the employer should have taken into account the lack of assessment, adjustments and inherent unfairness prior to that, given that all exacerbated her condition and absences.

This is a reminder that the correct process when dealing with an employee with a long-term health condition (that could amount to a disability under the Equality Act 2010) is to:

• pause and medically and occupationally assess the condition against the role and business requirements;
• also assess any reasonable adjustments, if applicable, that can be made: and then
• plan the next actions.

Simply applying a standard absence management process without first assessing for disability and adjustments, if applicable, in such a case will highly likely lead to a costly disability discrimination claim.

Our team do provide training for management teams on this and other areas too, so do click the link for details here or get in touch with the team:

https://www.bridgeemploymentlaw.com/employer/employment-law-training-for-managers/