Sickness Absence Management and Disability Discrimination

Managing sickness absence is a necessary part of running a workplace, but it becomes complex when health issues intersect with disability rights. In England and Wales, employees are protected against disability discrimination under the Equality Act 2010, and sickness absences related to a disability can trigger additional legal duties for employers. Poor management of disability‑related absence, failure to make reasonable adjustments, and unfavourable treatment linked to a health condition can lead to claims in employment tribunals. This article explains the legal framework, outlines key procedures and rights, highlights potential legal risks, and provides practical guidance for employees and employers.

Legal Framework: Disability and the Equality Act 2010

What Counts as a Disability

Under the Equality Act 2010, a person is disabled if they have:

• A physical or mental impairment,
• That has a substantial and long‑term adverse effect on their ability to carry out normal day‑to‑day activities.

This definitional test is statutory and applies in employment law to decide who is protected from discrimination.

Disability Discrimination: Key Concepts

Disability discrimination can take several forms, including:

• Direct discrimination – treating someone less favourably because of disability.
• Indirect discrimination – applying a rule, policy or practice that disadvantages disabled workers unless it is objectively justified.
• Discrimination arising from disability – unfavourable treatment because of something arising from a disability, unless the employer can show it was a proportionate means of achieving a legitimate aim (Section 15 of the Equality Act 2010).

Employers also have a positive duty to make reasonable adjustments to remove substantial disadvantages faced by disabled employees in the workplace.

Sickness Absence and Disability Law

Distinguishing Ordinary Sickness from Disability‑Related Absence

Not all sickness absence is disability‑related, but employers must carefully consider whether health issues falling within the statutory definition of disability affect an employee's absences. Acas guidance recommends that employers include disability‑related absence provisions in absence policies and have clear procedures for handling absences connected to disability.

For example, time off for medical appointments, treatment or recovery related to a disability may require different handling compared with non‑disability sickness absence. Treating all absences the same without considering if they arise from a disability can be discriminatory.

Reasonable Adjustments and Absence Management

Employers must consider reasonable adjustments where a disabled employee is substantially disadvantaged by workplace practices, including absence policies. Adjustments related to sickness absence may include:

• Not counting disability‑related absences towards trigger points that prompt formal absence reviews or disciplinary action.
• Adjusting the number of absences that trigger formal reviews.
• Recording disability‑related absence separately (sometimes referred to as “disability leave”).

These adjustments help ensure that absence management processes do not indirectly discriminate against a disabled employee. Employers should consult openly with the employee, consider medical or occupational health input, and tailor adjustments to individual circumstances.

The Equality and Human Rights Commission Employment Statutory Code of Practice sets out that employers are not automatically obliged to disregard all disability‑related sickness absence, but when it is reasonable to do so employers should consider making that kind of adjustment. Tribunal case law emphasises that absence policies must be applied in a way that avoids discrimination.

Common Scenarios: When Absence Management Intersects with Disability Rights

Formal Absence Procedures and Disability

Many employers operate absence management schemes with trigger levels that prompt formal stages such as review meetings, warnings or even dismissal. If a disabled employee's absences cause them to meet trigger levels, employers must ask:

• Are the absences due to a disability?
• Has the employer engaged with the person about reasonable adjustments?
• Would not counting some disability‑related absences towards the triggers be a reasonable adjustment?

Failing to consider these questions can result in indirect discrimination or even claims of discrimination arising from disability, especially if unfavourable treatment follows from disability‑related absences.

Long‑Term Sickness Absence and Unfavourable Treatment

When employees are absent long‑term due to disability, employers often consider capability procedures, restructuring or dismissal due to inability to attend work. Case law and employment commentary recognise that decisions based on disability‑related absence can amount to disability discrimination unless objectively justified. The Equality Act 2010 Section 15 test requires employers to show that any unfavourable treatment was a proportionate means of achieving a legitimate aim, such as maintaining workforce capacity, if challenged.

Tribunals and the Court of Appeal have considered cases where absence policies applied equally to all employees could still engage the duty to make reasonable adjustments if disabled employees were put at a disadvantage. The Griffiths case, for example, held that disability‑related absence could engage the reasonable adjustment duty, even where policies were formally neutral.

How Disability Discrimination Claims Arise in Absence Contexts

Failure to Make Reasonable Adjustments

A common basis for tribunal claims is failure to make reasonable adjustments where an employer did not take appropriate steps to remove barriers faced by a disabled employee, such as ignoring medical and occupational health advice or failing to adjust absence triggers. Employers must proactively engage once they know, or could reasonably be expected to know, that an employee is disabled and that absence is related to that disability.

Discrimination Arising from Disability

Claims under Section 15 can arise when an employer treats an employee unfavourably because of something arising from their disability, such as sickness absence. For example, disciplinary action or dismissal where decision‑makers rely on disability‑related absences without appropriate justification may be unlawful unless the employer proves objective justification.

Procedural Considerations for Tribunal Claims

Time Limits and Early Conciliation

Disability discrimination claims in the employment tribunal generally must be lodged within three months less one day from the date of the discriminatory act or practice. Before submitting a claim to the tribunal, the claimant must usually notify Acas for early conciliation. Early conciliation can help resolve issues without tribunal proceedings and is a mandatory procedural step.

Evidence and Burden of Proof

In a tribunal claim, claimants bear the initial burden to show facts from which discrimination could be inferred. Once this is done, the employer must explain and justify its actions, including any reasonable adjustments considered and how absence policies were applied. In Section 15 claims, employers must show objective justification for unfavourable treatment arising from disability.

Remedies

If a tribunal finds disability discrimination, remedies can include:

• Compensation for injury to feelings,
• Compensation for financial loss (e.g., lost wages),
• Recommendations to change workplace policies or practices.

Compensation for discrimination is not subject to a statutory cap, unlike some procedural claims.

Practical Steps for Employers

• Develop clear sickness absence policies that address disability‑related absence and reasonable adjustments.
• Train managers and HR professionals on recognising disability issues and the duty to make reasonable adjustments.
• Engage with employees early when absence patterns emerge, and seek medical or occupational health advice.
• Record decisions and adjustment discussions to show consideration of disability rights.
• Review absence triggers to ensure they are applied fairly and do not disadvantage disabled employees.

Practical Steps for Employees

• Know your rights under the Equality Act 2010 regarding disability discrimination and reasonable adjustments.
• Inform your employer about a disability where appropriate and request reasonable adjustments in writing, including adjustments to how absence is managed.
• Keep records of communications, medical evidence, and any occupational health reports.
• Engage in discussions in good faith about return‑to‑work plans or adjustments that support attendance.
• Consider early conciliation with Acas if thinking about a tribunal claim, and seek advice from a qualified employment solicitor or an advisory body like Citizens Advice.

Common Questions

Does every sickness absence trigger disability rights?
No. Only absences related to a health condition that meets the statutory definition of disability are likely to engage disability discrimination protections and the reasonable adjustment duty. Employers should assess each case individually.

Can absence policies still apply to disabled employees?
Yes, but employers must consider adjustments to ensure that disability‑related absences do not disproportionately disadvantage the employee. Blanket application of absence penalties without adjustment risks disability discrimination claims.

Is dismissal due to long‑term disability absence always unlawful?
Not always. Dismissal may be lawful if the employer can show that unfavourable treatment was a proportionate means of achieving a legitimate aim, such as maintaining operational effectiveness. However, employers must still consider reasonable adjustments and consult appropriately.

Final Thoughts

Sickness absence management and disability discrimination law intersect where health conditions affect attendance at work. Employers must carefully navigate absence policies, assess disability‑related absences individually, and make reasonable adjustments to avoid discriminatory outcomes under the Equality Act 2010. Employees should communicate needs, engage with absence management processes, and, if necessary, consider early tribunal claims through Acas. Understanding legal duties, practical steps, and potential claims helps both employees and employers manage sickness absence fairly and lawfully.