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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47375
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my daughter works full time and has epilepsy, she is in receipt

Customer Question

my daughter works full time and has epilepsy, she is in receipt of allowances for mobility (low rate) and care (medium rate). Her employers are possibly taking disciplinary action as a result of her absences from work using the Bradford system. I thought that under the Disability Discrimination Act that they had to separate her "condition" absences from normal sickness absences? Also 2 of her illnesses in the last 12 months have been picked up from working at the nursery (norwalk virus) where children have been accepted into the nursery with sickness. My daughter has a letter from her employers that I feel needs a response.
Submitted: 4 years ago.
Category: Law
Expert:  Ben Jones replied 4 years ago.
Hello, my name is XXXXX XXXXX it is my pleasure to be able to assist with your question today. Please let me know what are your specific queries in relation to this?
Customer: replied 4 years ago.

if an employer is using the bradford absence index to "score" employees on sickness do they have to run 2 scores for people with disabilities - one relating to absences relating to their disability (sickness related to their condition, hospital visits etc) and a second score for normal illness? Also the nursery has had 2 cases of norwalk virus in the last 12 months - where my daughter picked up the virus and was ill on each occasion for 2 days, can the nursery abstain from responsibility in this regarding her absence on each of these occasions?

Expert:  Ben Jones replied 4 years ago.
There is nothing specific in law that states an employer who runs the Bradford scoring system should have two separate systems for employees that are disabled and employees that are not. It is in fact entirely possible to consider disability-related absence for capability or even disciplinary purposes, although the fairness of such actions will depend on the circumstances.

What is important to consider is that the employer will have a duty to make reasonable adjustments and sometimes that may include allowing time off for medical appointments, although it does not mean that the employer should discount sickness absence related to a disability.

Many disabled employees have been subject to capability proceedings and even dismissal because of excessive absences due to a disability and that can certainly be fair. The main issue, however, would be how the employer has treated the employee in the meantime and whether they have made all reasonable adjustments that could be expected of them.

As to employer's liability for the virus that would really depend on whether they can be shown to have been negligent in the process and that their negligent actions had resulted in the spread of the virus. Even then, as long as all employees that were off ill were treated equally the employer would not be acting unfairly.

Please take a second to leave a positive rating as that is a very important part of our process. Your question will not close and I can continue providing further advice if necessary. Thank you
Customer: replied 4 years ago.

I have done a bit of research on this matter and have just found the following; according to the uk business forum if a person has a condition that is covered under the Disability Discrimination Act (ie Epilepsy) then employers should ignore absences related to the condition for calculation purposes and look at the absences that are not related to the disability? Also looking at the act point 6.3 (f) the employer has a duty allowing the employee to be absent during working hours for rehabilitation, assessment or treatment? Can you confirm this is the case? I feel my daughter is being discriminated against as a result of her condition - her employers are a large national company with a poor HR policy of one size fits all. I am not looking to make trouble for her just to protect her position.

Expert:  Ben Jones replied 4 years ago.
The DDA is no longer in force, it was repealed by the Equality Act 2010. As far as the law stands, disability-related absence should only be taken into account if the employer is satisfied that all reasonable adjustments have been made and the taking into account of this data is a proportionate means of achieving a legitimate aim. So as long as all reasonable adjustments have been made and there is nothing else the employer can do to help the employee then such absences can be taken into account.
Customer: replied 4 years ago.

so on the adjustments front would it be a good practice to separate the absences as detailed earlier and would a reasonable adjustment to expect her employers to have her start her shift later in the morning if her vulnerable time relating to her condition is early mornings. Her shifts can start from 630am - 930am. Her vulnerable time is between 630am & 830am?

Expert:  Ben Jones replied 4 years ago.
A reasonable adjustment would not require the employer to always separate these absences, otherwise disabled employees would never face capability or dismissal proceedings, which is certainly not the case. A reasonable adjustment could be allowing her to take time off for treatment, making adjustments to work premises, altering her hours and duties and so on.

As your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do. I can then continue providing further advice and answer follow up questions if needed. Thank you.
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Customer: replied 4 years ago.

are there any pointers relating to this subject in human rights legislation?

Expert:  Ben Jones replied 4 years ago.
This is not really a human rights issue this is specifically covered in disability discrimination legislation which is governed by the Equality Act 2010
Customer: replied 4 years ago.

ok thanks

Expert:  Ben Jones replied 4 years ago.
You're welcome