At this time of year, allergies, such as hay fever, can flare up.

Allergies can be one of the reasons why an employee’s productivity goes down and why they are absent from work, so it is useful for all employers to think about what you can do to accommodate allergic employees in the workplace.

This will depend on the nature of the workplace and the activities you carry out, but in an office environment it could be:

• Dust mites
• Food, such as nuts or milk
• Mould
• Pollen or animal dander on people’s clothes

What can allergens cause?

In the majority of cases, the effects can be quite mild, such as itchy eyes, dry throats or sneezing. In some circumstances, it can cause more serious consequences, such as eczema, worsening of asthma or even anaphylactic shock.

What can employers do support and accommodate employees with allergies?

Mostly people understand what triggers their allergy, therefore you should consult with the employee, understand their triggers and the impact it has on them. Armed with this information, you can take measures to minimise the risks.

If they have had an allergic reaction at work, you should carry out a risk assessment to ascertain the risk and take steps to minimise or eradicate them.

Some others things to think about include:

• Keep the premises clean – you should ensure that desks, upholstered furniture and carpets are regularly cleaned to help limit dust.
• Make sure that the work site is well-ventilated. Hay fever sufferers may need the window closed when the pollen count is high, so be aware of this.
• Ensure that mould is not nestling in your plants.
• Consider ensuring that all coats, jackets and outer wear that could have pollen or animal dander are far away from work stations.

 Could an allergy be considered a disability?

Under the Equality Act, a worker will be considered disabled under the Equality Act if they can show that they suffer from a long term (i.e. 12 months or more) physical or mental impairment which has a substantial (i.e. more than trivial) effect on their ability to carry out day-to-day activities.

Seasonal allergic rhinitis, such as hay fever, is expressly barred from being considered a disability in the Equality Act except if it aggravates the effect of any other condition. However, some Employment Tribunal cases have shown that an employee’s allergy may fulfil the Equality Act’s definition:

• In Glass v Promotion Line Ltd, an Employment Tribunal found that the employee’s eczema was a disability within the meaning of the Equality Act. In this case, the employee had to apply cream every morning and the process generally took an hour. The Tribunal held that it was a long tem physical impairment – she has suffered from the condition most of her life and it was likely she would continue to be affected by it for the rest of her life. It did have a significant impact effect on her ability to carry out day to day abilities, such as her ability to socialise or even leave her home.
• In Wheeldon v Marstons plc, a chef has a life- threatening peanut allergy. He carried adrenaline auto-injectors at all times and had been in hospital on many occasions. When at work, he suffered a severe allergic reaction and he did not return to work. In this case, the Employment Tribunal found that his condition met the definition in the Equality Act.

These cases were decided on their individual merits; therefore you cannot assume that everyone who has eczema or a peanut allergy will be considered disabled. Contact your Employment Law Adviser to discuss this further.

If they are disabled, what are employers required to do? 

If the employee is disabled, there is a legal duty imposed on employers to make reasonable adjustments for disabled employees when they are placed at a substantial disadvantage by an:

• employer’s provision, criterion or practice or
• a physical feature of the employer’s premises or
• an employer’s failure to provide an auxiliary aid.

When taking into account what is ‘reasonable’, the Statutory Code of Practice states that some of the factors which should be considered are whether taking any particular steps would be effective in preventing the substantial disadvantage, the practicability of the step, the financial and other costs of making the adjustment and the type and size of the employer.

In Dyer v London Ambulance NHS Trust, the Employment Appeal Tribunal (EAT) stated that providing a workplace free from aerosols and perfume was not a reasonable adjustment that the employer could make to accommodate an employee who could suffer from a life-threatening reaction to these products. The EAT found that imposing a ban would not have been reasonable given the nature of the role and the workplace.

The case above shows an extreme set of circumstances, but in most cases, some reasonable adjustments will be possible. Depending on the circumstances, you could allow the employee time off for medical appointments or treatment, adjust their equipment or move their workstation.

Under the Health and Safety at Work etc Act1974, employers must ‘so far as is reasonably practicable’ protect the health and safety of employees by removing or reducing workplace risks.

There is also an implied duty to provide a safe place of work and if you fail to comply with this, you could face risks of constructive dismissal. Therefore, even if the employee doesn’t have a disability, you may have to make a reasonable adjustment to accommodate their allergy. Seek legal advice to find out more about this.

This is a complex matter, so speak to your Employment Law Adviser who can guide you.