Not to be Sniffed At

 Tips for employers on dealing with allergies in the workplace.

We provide a selection of some employment tribunals on the issues of allergies, with a chef’s serious nut allergy and a worker’s severe eczema both being classed as a disability under the Equality Act 2010, therefore allowing their discrimination cases to proceed.</em

Under the Equality Act, to be disabled, an individual has to have an impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

In the case of Wheeldon v Marstons plc, the chef suffered a severe allergic reaction when he came into contact with nuts while at work.  He did not return to work and brought a number of disability claims, arguing his employer failed to offer alternative work.

In the second case, Glass v Promotion Line Ltd, the worker, who suffers from severe eczema, brought a disability discrimination claim after she was dismissed by her employer.

In Glass, the tribunal heard that it took the worker more than an hour to get ready in the morning because she had to apply cream and wait for it to be absorbed, meaning that it took her considerably longer to get ready for work than someone who did not need to do so.

This, the tribunal argued, amounted to a substantial adverse effect on her ability to carry out day-to-day activities. It therefore classes her as having a disability.

A further recent case, HMRC Commissioners v Whiteley, the claimant suffered from asthma and her condition was exacerbated by respiratory infections that resulted in some absences from work.

The respondent had a policy in place which meant that an employee being absent through illness for ten days or more in a year may be subjected to disciplinary action. The employee complained that this policy put her at a disadvantage and that the employer had, accordingly, failed to make reasonable adjustments. The Employment Appeal Tribunal set out two possible avenues the employer could take when dealing with this type of situation. Firstly, the employer should consider, with expert evidence, the periods of absence and attempt to analyse with precision what was attributable to disability and what was not. Alternatively, they should ask – and conclude with proper information – what sort of periods of absence the employee would reasonably be expected to have over the course of an average year because of her disability.

The point for employers to take from this case is that the Employment Appeal Tribunal will regard it as paramount to obtain adequate information about the absences before taking action against the employee.

It is also crucial for Employers to make any reasonable adjustments that are necessary. What amounts to a reasonable adjustment to accommodate allergies in the workplace depends on the individual and their role. However, examples of typical adjustments that might be considered are; 

Relocating the employees workstation somewhere away from the cause of the allergy
Finding an alternative role within the organisation for the employee 
Allowing the person with a disability to be absent for treatment or Drs appointments 
Providing specific equipment or materials eg non latex gloves for someone with latex allergies or non-toxic and unperfumed cleaning products and office supplies for an employee with asthma.