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‘Not to be sniffed at’: tips to employers on dealing with allergies in the workplace

This article looks at how employers should deal with employees who suffer from hay fever and other allergies. Allergy UK, the charity representing those who suffer from allergies and intolerances, estimate that one in four people in the UK suffer from an allergy and that this figure is on the increase. The most common complaint is hay fever and, with the pollen count at its highest around this time of year, many people will be suffering.

Is an employee with allergies classed as disabled by Equality Act 2010?

A person is considered disabled for the purpose of the Equality Act 2010 if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out day-to-day activities.

Whether or not an employee with an allergy meets this definition will always come down to the individual facts.  However, there are a number of cases where employees with allergies to things such as peanuts and latex have been held to be disabled.  That is not to say that every employee with an allergy is disabled for the purpose of the Equality Act: the allergy will still need to meet the definition of having a substantial and long-term effect on their ability to carry out everyday activities. For example, in the case of an employee suffering from a serious nut allergy, even the smell of nuts could cause an allergic reaction, and so the employee has to carry adrenaline with them at all times in case they come into contact with any nuts.  Such sensitivity to the allergen is likely to satisfy the definition of ‘disabled’.

There are a number of conditions expressly stated not to be impairments (and therefore not disabilities), including seasonal allergic rhinitis (i.e. hay fever). However, hay fever can be taken into account where it aggravates the effect of any other condition.  Hay fever sufferers may find, for example, that their asthma or eczema is made worse when they are suffering from hay fever and therefore employers should not be too quick to dismiss the possibility that an employee is ‘disabled’ in these circumstances.

Employer’s duty to make reasonable adjustments

If an employee is classed as ‘disabled’, then their employer has a duty to make reasonable adjustments to premises or working practices. An employer may need to obtain evidence from medical and/or occupational health experts, in order to help them determine what adjustments are necessary. If an employer is unsure whether the employee’s condition amounts to a disability, they should consider acting on the basis that it does and make any reasonable adjustments required.

What amounts to a reasonable adjustment depends on the individual and their role.  However, examples of typical adjustments that might be considered are:

  • Relocating the employee’s 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 doctors’ appointments;
  • Providing specific equipment or materials, e.g. non-latex gloves for someone with latex allergies or non-toxic and unperfumed cleaning products and office supplies for an employee with asthma.

This list is by no means exhaustive and if, for example, an employee has a severe latex allergy, it may be possible that a reasonable adjustment would be that their colleagues also use non-latex gloves.

Employers should be alive to triggers in the workplace. For example, asthma is commonly triggered by cigarette smoke, latex gloves, paints and dyes, chlorine, dust or cold air. Asthma UK estimate that 3,000 people a year develop ‘occupational asthma’. This is triggered in people who did not previously have asthma by breathing in substances at work; common causes are wood dust, latex and flour dust. High-risk occupations include health workers, spray-painters, people working with chemicals or in the baking and flour industry. In these situations, the employer should carry out a risk assessment, consult the worker about triggers and take steps to avoid them.

Many employers have policies in place which specify that action will be taken against an employee who reaches a certain level of absence from work. It can be a reasonable adjustment for an employer to ‘discount’ absences due to disability when applying such a policy. However, in the case of employees with allergies, it can be very difficult for an employer to know which absences are due to the allergy and which are unrelated.

Employment Appeal Tribunal guidance

The Employment Appeal Tribunal dealt with this issue recently in the case of HMRC Commissioners v Whiteley. In this case, 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.

For more information on this article, to discuss how these issues might affect your business or to discuss employment law matters in general, please  call 0117 904 6000.

Posted on Sep 9th, 2013 by Lyons Davidson