Absence recording and actioning

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Warning for swinging the lead on several occasions or genuine sickness?
I'm unsure discipline is fir all employees.
Can you ask the employee to provide fit note fir all future absence from the GP.

Personally asthma is usually brought on by others sniffling and passing on disease to fellow employees. I then end up on steroids and antibiotics and off my feet for 2 weeks in bed I'll.
1 day sickness seems suspect unless severe asthma attack involved in which most people contact health care team.

If a reasonable adjustment is appropriate in the case of the absence due to asthma then the trigger point has still not been reached.

A small point, and I'm no HR expert so I don't know if relevant, but do you not need to take into account the fact that the previous absences were unrelated to asthma ? Whilst this last absence is the one that triggered the warning, the previous ones were all attributable to sickess bugs, thus completely unrelated to the asthma situation. If the situation were reversed would it be dealt with differently ?

Thank you all for your comments, I think we will have to re consider the use of our Sickness and Absence Procedure or at least the stages we use.

The equality act has taken account of SCA v Boyle. If a person is actually coping pretty well with their medical impairment then they are still protected by the Act. The reason is that someone may interfere with the coping mechanism and the coping then fails. They are then disabled and for the purposes of the law, always were.

The employer may have no idea that there is a hidden disability.

Doubtless there will be more case law on this.

HI Kevin

I completely agree. I should probably have said that someone with a disability MAY be more likely to have higher sickness absence and if leave is directly or indirectly attributable to the disability, it should be treated differently to leave that is not disability-related.

As for your last question, I would argue that yes, there would be a potential liability there, dependent on the facts & circumstances of the case.

I would contend that the legal definition (under the Equality Act) of any long term condition, asthma being one of them, is the effect that would be suffered if left untreated. A sickness absence of one day, or for that matter 101 days, doesn't define the disability per se. It's quite possible to be disabled and have a 100% attendance record. What is important is how you treat any absences attributable to the disability in terms of reasonable adjustment.
I happen to suffer from asthma, I'm also diabetic. I can attest to the fact that both have a long-term, adverse effect on the way I live my life. Both require me to make adjustments. Neither (touch wood) have caused me to accrue any significant absence from work. Are they disabilities? Well, yes they are.

If a company operates a culture of Presenteeism which allows (for example) staff suffering from URTI to work alongside colleagues with depleted immune systems doesn't that make the company liable under HASAW for the subsequent ill health of the vulnerable employee? Discuss.

Firstly, the DDA has been replaced by the disability provisions of the Equality Act 2010 and is only relevant to complaints/discriminatory acts that arose before October 2010.

A person has a disability for the purposes of the Equality Act if they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

If an employee has a disability, as defined above, then the employer has an obligation to make reasonable adjustments. In the situation you describe (if the employee does have a disability), then the employee can argue that your attendance management procedure constitutes a "provision, criterion or practice" that places them at a "substantial disadvantage" (as a person with a disability, they are more likely to have a higher level of absence & therefore more likely to be disciplined or dismissed).

Ultimately, only a court or tribunal can determine whether a person has a disability as defined in the Act. Therefore, where there is doubt, most employers adopt the safest course of action and presume there is disability rather than there is not.

It's not as simple as the number of days off due to the condition- you need to think more broadly. "Normal day-to-day activities" are not work-related activities (though may include some activity at work- e.g. using a monitor).

If a worker had chronic asthma it might take longer for them to get over a cold or flu. In this situation you could give them extra days to recover but record these as disability-related leave not sick leave. If they got a tummy bug which wouldn’t make their asthma worse, then they wouldn’t get extra days to recover.

Some people may not find their asthma too much of a problem but for others it could have a significant impact on their life. They would have to show that the impact on their life is more than minor. So, for example, a person with asthma may become breathless doing routine daily tasks like climbing the stairs.
This is more than a trivial effect on their life. It does not matter if the effect is not there every day.

You might find the guidance below, from the government's disabilities office, to be useful. If you're in any doubt, then it is worth seeking a medical opinion about the impact of the condition on your employee. Disability discrimination claims can be very costly.

http://odi.dwp.gov.uk/docs/wor/new/ea-guide.pdf

Hi Ann, I think you may find that you are breaching the Equality Act 2010 by applying this method now.

You must determine the type of condition and its long term effects to determine if it comes within long term disability. If this is the case you must ensure that you have made adequate adjustment before you go down the path of disciplinary or you'll also be breach of the Employment Act.

It is worth bearing in mind that you must be very cautious when adopting performance/measuring models into the workplace environment. They may be very effective, but not always the right thing to use in the wrong context.

As an analyst I often hit upon contentious data usage and it must be used with extreme caution.

Firstly, whilst the Bradford Factor is useful as a yardstick measure, I dont feel it should be used as a tool to set your disciplinary procedure around as it is too unflexible and unsympathetic to individuals circumstances. Use it as a highlighting/tracking tool by all means but dont be forced to act by its measurements.
To get to your issue, I agree with Kev, consultation is needed to establish whether the individuals working conditions are a contributing factor to their condition, what can be done, if anything, to ease their condition within the workplace and the possible long term ramifications their condition may pose on their ability to carry out their duties.
One point I would like to make is that the DDA states that asthma is recognised as a disability only if the adverse effect is substantial and long term. I dont see how a day here or there falls into this requirement.

DDA definition of disability
It is important to understand the definition of disability within the DDA, as only people who fall within the definition (or have, in the past, fulfilled these criteria) are covered by the majority of the Disability Discrimination Act's safeguards.

The only exception is for the section against victimisation. The definition of disability was updated and amended with effect from December, 2005.

The act defines disability as:
'A physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out day-to-day activities.'

If this is a condition that he has already disclosed then I would suggest that before any verbal warning is carried out that some mdical check/ cosulation etc be carried out to determine what the long terms effects that his condition could have on his ability to carry out his duties and also to determine what adjustments that may need to be implimented. I'm speaking as an asthma sufferer who is affected by the changing seasons and common cold.

Hi All
We run a sickness and absence procedure based on the Bradford Factor where all absences are recorded and depending on how many absences points are accrued and then actioned upon.

We have an employee who has accrued points to warrant a verbal warning, he has already had a consultation earlier in the year and has now been off sick 1 day with Asthma and has stated that under the Disability Rights Commissionm, Asthma is classed as a disability and he refuses to accept the Verbal warning. The other absences he has accrued points for were for sickness bugs.
He stated on his medical questionaire on commencement he has Asthma but it is under control.
Are we in our right to issue the Verbal warning?