Disability Absence & the Equality Act: Guide

Quick Answer: Must Disability-Related Absence Be Treated Differently?

Yes. Under the Equality Act 2010, employers must make reasonable adjustments for disabled employees, which includes how absence is managed. Applying standard absence triggers (including Bradford Factor thresholds) to disability-related absence without adjustment can constitute disability discrimination.

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What Counts as a Disability?

Under the Equality Act 2010, a disability is a physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities.

• Substantial means more than minor or trivial
• Long-term means lasting or likely to last 12 months or more
• Day-to-day activities include things like walking, using a computer, concentrating, or socialising

Some conditions are automatically treated as disabilities: cancer, HIV, multiple sclerosis, and certified visual impairments. Mental health conditions (depression, anxiety, PTSD) can qualify if they meet the statutory test.

Employer's Knowledge

The duty to make reasonable adjustments arises when the employer knows or ought reasonably to know that an employee has a disability. This means you cannot ignore obvious signs or fail to make enquiries when there are indicators of a disability.

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Reasonable Adjustments for Absence Management

Adjusting Absence Triggers

The most common reasonable adjustment for absence management is raising or disapplying absence trigger points for disability-related absence. This means:

• Bradford Factor: Exclude disability-related absences from the calculation, or apply higher thresholds
• Return-to-work triggers: Do not count disability-related absences towards the number that triggers a formal review
• Attendance targets: Adjust targets to account for the disability

Other Reasonable Adjustments

• Additional paid or unpaid sick leave beyond the standard policy
• Phased returns after disability-related absence
• Flexible working to manage appointments or fluctuating conditions
• Workspace adaptations (standing desk, screen reader, quiet room)
• Redeployment to a less physically or mentally demanding role
• Access to employee assistance programmes or counselling

What is "Reasonable"?

Factors the tribunal considers:

• The effectiveness of the adjustment in removing the disadvantage
• The practicability of making the adjustment
• The cost relative to the employer's resources
• The availability of financial or other assistance (e.g. Access to Work grants)
• The extent of the employer's activities and resources

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Key Case Law

Griffiths v Secretary of State for Work and Pensions (2017): The Court of Appeal held that failing to discount disability-related absences from attendance management was a failure to make reasonable adjustments.

Buchanan v Commissioner of Police of the Metropolis (2016): The EAT found that applying standard absence management triggers to a disabled employee without considering adjustments amounted to indirect discrimination.

Metroline Travel v Stoute (2015): The EAT confirmed that adjusting absence trigger points for disability-related absence is a reasonable adjustment that employers should consider.

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Practical Steps for Employers

Step 1: Identify Disability-Related Absence

When an employee discloses a disability or when you become aware of a potential disability:

• Flag their absences as potentially disability-related in your HR system
• Do not automatically include these absences in Bradford Factor calculations
• Seek occupational health advice to understand the condition and its impact

Step 2: Consult with the Employee

Have an open conversation about:

• How their condition affects their attendance
• What adjustments would help reduce absences
• Whether they need support accessing treatment or therapy
• What information they are comfortable sharing with their manager

Step 3: Obtain Occupational Health Advice

An OH referral should cover:

• Whether the condition constitutes a disability under the Equality Act
• Expected absence patterns related to the condition
• Recommended adjustments to reduce absence and support the employee
• Prognosis and whether the condition is likely to improve

Step 4: Implement and Review Adjustments

• Document agreed adjustments and review dates
• Monitor whether the adjustments are effective
• Adjust the plan if the employee's condition changes
• Keep records of all discussions and decisions

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How Grove HR Handles Disability-Related Absence

• Disability flag on employee profiles to exclude relevant absences from Bradford Factor
• Separate absence tracking for disability-related and non-disability absences
• Occupational health referral and report tracking
• Adjustment records documenting agreed reasonable adjustments
• Manager guidance prompts when disability-related absence is recorded

Get started with Grove HR and manage disability-related absence compliantly.