Revenue & Customs v Whiteley

In assessing reasonable adjustments for disability-related sickness absence, a tribunal may adopt more than one permissible method. It may analyse particular absences to identify the extent attributable to disability. Alternatively, it may determine, on proper information, the level and pattern of absence reasonably to be expected from a person with that disability over an average year.

The tribunal must accurately construe the medical evidence. It must not treat evidence that asthma may worsen the effects and duration of respiratory infections as evidence that an asthma sufferer is more susceptible to contracting those infections, unless the evidence supports that conclusion. A tribunal must not reject an employer’s allowance or apportionment approach merely because it prefers another permissible approach.

The employee, who had asthma, was subject to the employer’s sickness-absence policy after 15 days’ absence in a rolling year. The employer discounted three days when applying its consideration point and issued a warning. The employee alleged that the employer had failed to make reasonable adjustments under section 20 of the Equality Act 2010.

The Employment Tribunal upheld liability. It treated medical evidence as showing that an asthmatic person was more susceptible to viral and chest infections, rejected the employer’s apportionment approach, and regarded the relevant absences as directly related to asthma. The employer appealed. The central issue was whether the Tribunal had permissibly understood and applied the medical evidence when deciding what adjustment was reasonable.

1. Appeal allowed. The Employment Tribunal’s finding of liability could not stand because it rested on a material misunderstanding of the medical evidence.
2. The evidence established that common viral infections may exacerbate asthma, may require treatment, and may extend recovery and absence. It did not establish that asthma made the employee more susceptible to contracting colds, influenza, viral infections or chest infections. The Tribunal therefore could not infer that the relevant absences were directly related to asthma merely because the employee had suffered those infections.
3. There were at least two permissible approaches to adjustment for absence where a disability interacts with ordinary ailments. An employer or tribunal may analyse the absences under review, with expert evidence if necessary, to determine what is attributable to disability. It may instead determine, using proper information, the pattern of disability-related absence reasonably expected over an average year.
4. The medical evidence that an asthma sufferer might typically have absences of a few days three or four times a year could permissibly have been applied to the 15 days under review. Equally, the employer’s allowance or apportionment approach was in principle proper. The Tribunal erred by wholly discounting the periods of absence on the basis of its mistaken reading of the evidence and by substituting its preferred longer-term approach for a permissible one.
5. The case was remitted for a complete rehearing before a freshly constituted Employment Tribunal. A fresh tribunal might reach the same result, but only by properly reasoning from the available evidence.

• Employment Appeal Tribunal: allowed the employer’s appeal and remitted the reasonable-adjustments claim for rehearing before a fresh Employment Tribunal.
• Employment Tribunal: had determined liability in favour of the employee under section 20 of the Equality Act 2010; its decision was set aside. No lower-court citation was stated.