In handling sickness absence, practitioners need to be watchful of the
Disability Discrimination Act. By Kenneth
McKeown
Sickness absence is a perennial problem for employers. A survey of 300
organisations last year showed absence levels were rising with one in five
identifying it as a major problem1.
It is not just short-term absence that is giving rise to anxiety. The Government
is becoming increasingly concerned at the number of applications for ill-health
retirement in the public sector. While chief secretary to the treasury, Alan
Milburn set up a working party to examine the reasons for this and to make
recommendations.
Absence categories
The handling of sickness absence is not easy. There are perhaps more
misunderstandings on this subject than any other areas of occupational health
and this, in part, relates to the diverse nature of absence and, more recently,
the effect of the Disability Discrimination Act.
Reasons for sickness absence are made up of both medical and non-medical
components. It is the relationship between the two that causes much of the
difficulty for OH departments.
In 1991 an article in Occupational Health2 proposed classifying absence
according to the predominant component. An adaptation of the Acas
classification was used.
1 Absenteeism (non medical)
2 Long-term sickness (medical)
3 Short-term certified and uncertified sickness (medical and non-medical).
While these categories should not be regarded as watertight, the
classification does provide a logical approach to the handling of this complex
and sensitive issue. However, the OHP has also to consider whether the absent
employee with a significant medical component falls within the provisions of
the Disability Discrimination Act (DDA).
The Act makes it unlawful for an employer to treat a person less favourably
for a reason related to the person’s present or past disability than they treat
or would treat a person to whom that reason does not or would not apply.
It is not unlawful, however, for an employer to treat a disabled person less
favourably if they can show that the treatment is justified for a reason which
is both material to the circumstances of the case and substantial.
The Act defines a disability as having a substantial and long-term adverse
effect upon that person’s ability to carry out normal day-to-day activities.
Under section 6(1), the employer is placed under a strict duty to make
reasonable adjustments to the workplace if the disabled person would be
"at a substantial disadvantage in comparison with persons who are not
disabled".
One of the common misunderstandings is in the definition of disability. It
does not relate to work but to everyday activities. The guidance gives the
following advice: "In deciding whether an activity is a day-to-day
activity, account should be taken of how far it is normal for most people and
carried out by most people on a daily or frequent or fairly regular
basis." (para C2).
‘Long-term’ interpretation
There is a critical distinction between disability as defined by the Act
that relates to normal day-to-day activities and ability to undertake a
particular type of work. This is illustrated in the case of interpretation of
"long term".
Another common misunderstanding is the meaning of long term. An impairment
will be regarded as having a long-term affect if the disability has lasted for
at least 12 months and is likely to last for another 12 months. (DDA 1995
schedule 1. Para.2.1).
In considering this long-term effect the guidance states that account should
be taken of the likelihood of the impairment being cured by medical treatment,
but if the treatment merely controls the impairment rather than curing it, such
as with epilepsy, the condition still comes within the meaning of the Act,
provided it fulfils the other criteria. Past disabilities are also covered.
Disclosure of disability
The OH practitioner’s report normally relates to fitness to work and not on
ability to undertake normal day-to-day activities unless they impinge on work.
It includes advice on what modifications may help the individual return to
work and a prognosis and possible guidance regarding re-deployment. It is in
considering how this relates to the DDA that potential pitfalls become
apparent.
An OH practitioner’s report on the poor attendance of an employee with
multiple sclerosis may indicate that the individual suffers from a condition of
such severity that they will not only affect day-to-day activities but also
work and are likely to recur over a long period of time.
It would be clear to an employer receiving this report that this is a
disability within the meaning of the Act. If this employee’s attendance or
capability came into question and they were subsequently dismissed, the
employer would have to show that the treatment is justified.
In the case of poor attendance of a well-controlled epileptic clerical
worker whose reasons for absence are unrelated medical conditions the position
is more difficult.
The occupational health report may indicate that the individual is fit and
makes no mention of the disability as it is not relevant to his fitness to
work. If the individual’s attendance was unacceptable and he was subsequently
dismissed, became dissatisfied and make a claim: the manager may well be able
to defend the case as the dismissal was unrelated to the disability.
Nevertheless, he might have expected the occupational health practitioner to
have drawn attention to this disability so that when dismissing the employee he
makes it clear that the dismissal is not related to the disability and there is
medical evidence to support this.
There are ethical and legal difficulties about the latter approach as it
specifically states in the code of practice para 462, "It will be
necessary for employers to consider carefully whether and in what circumstances
they may need to ask for information about disabilities and if they do the use
they will make of it. Employers should avoid asking about disabilities unless
there are sound reasons for needing to know".
Risk assessment
The occupational health practitioner’s role is much clearer when it comes to
other aspects of the Act. The employer is required to make reasonable
adjustments. It may look to the occupational health practitioner for guidance as
to what adjustments and modifications of the work or workplace are required.
This is particularly applicable to a disabled employee bearing in mind that
a large number of ill-health retirements relate to musculoskeletal conditions.
Forty-one per cent of ill-health retirements in the NHS between 1998 and 1999
came under this umbrella3.
It is always wise for the occupational health practitioner, when an
employee’s capability is in doubt, to obtain a report from the individual’s
doctor so that an informed medical opinion can be given6.
The occupational health practitioner should undertake a risk assessment and
relate the individual’s medical condition to the work that they are expected to
do before making a recommendation as to what the most appropriate adjustments
of the work/workplace that would enable the individual employee to cope.
It is important in this respect to remember the role of the OH practitioner
is advisory. It is the responsibility of the management to decide on the
reasonableness of the modification and if this cannot be accommodated be
prepared to justify this if necessary in a tribunal.
In the context of current health and safety legislation the circumstances
may well be expected to include a risk assessment as in Holmes v Whittingham and
Porter (See Case Roundup).
Finally it is worthwhile reflecting on the dictum in The Lancet in 19794
that sickness absence is as much a problem for management as it is for medicine
and this is equally applicable in the wider ambit of disability discrimination
and the role of both the manager and occupational health practitioner is likely
to increase for some time to come.
Dr Kenneth McKeown is OH physician for County Durham and Darlington NHS
Trust, South Durham Health Care and Northallerton NHS Trust
References
1 Absence An Audit of Cost Reduction Methods (1999)
2 McKeown KD, Occupational Health, April 1991, p116-117
3 East Linsey District Council v Daubney (1977) IRLR 181
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4 Sickness Absence in Hospital Staff. The Lancet, ii: p1,278-9
5 Delaney L, Occupational Health, March 2000, p19
