In the recent years, there has been a rise in prevalence of allergies which may amount to life-threatening reactions. According to the Allergy UK, approximately 44% of the UK adult population suffers from one or more types of allergies. As a result, it’s really important for employers and employees to work together. They need to create a safe working environment for those suffering from allergies in the workplace.

Does an allergy amount to a disability?

Whether an allergy amounts to a disability depends on an individual’s circumstances, and there’s mixed case law on this. In a 2012 case, the Employment Tribunal held that the claimant with a severe nut allergy was disabled. He had been admitted to hospital on seven occasions for suspected anaphylactic shock, and his reaction was life-threatening. However, it was held in another case that diet-controlled conditions do not have a substantial adverse effect. This includes diabetes and allergies. Reasonable strategies are available, such as abstaining from consuming sugary drinks.

Under the Equality Act 2010, allergies are included in the definition of disability. In practice, whether an allergy sufferer is classed as disabled will depend on how severe the allergy is. It also considers the ease of controlling the allergy. For instance, if an individual is allergic to severe dust and has difficulties working without suffering a reaction, the allergy would likely have a substantial adverse effect on the individual’s day-to-day activities.

What must employers do and why is this important?

Employers have a legal obligation under the Health and Safety at Work Act 1974. So far as is reasonably practicable, they must protect the health and safety of all employees by reducing and removing work risks. For example, if an employee suffers from a severe peanut allergy that is likely to amount to a disability, the employer must make reasonable adjustments for that employee. This could include allowing the employee to go to their regular doctor appointments.

Furthermore, employers have a common law duty of care to its employees. So, where the risk of injury is foreseeable, the employer must take steps to prevent such injury. Otherwise, they may face a personal injury claim.

Should SMEs focus on allergies in the workplace?

Creating a safe working environment applies to all businesses, regardless of size. Although SMEs may not have the same resources as large businesses, there are simple steps they can take. These steps ensure that SMEs consider the needs of those suffering from allergies in the workplace. The following are tips outlining what you can do:

  • Asking your employee: This is the best thing to do as the employee will know about the severity of their allergic reaction and the specific adjustments they may require. Some employees with allergies may have action plans created with the assistance of specialists. These plans may contain details of how to deal with the reaction. The action plan should be discussed with the first aiders if a severe allergic reaction occurs. As part of your standard induction process, you should also ask new employees whether they suffer from severe allergies. By doing this, it will help you implement risk control measures and have the right first aid response available. It’s best to first request their permission to share their allergy information. This includes the severity of the reaction and noting that this will be circulated among first aiders and immediate colleagues. This request should be part of your data privacy policy for employees, contractors, and workers.
  • Keeping the office clean: Even if there isn’t anyone suffering from an allergy, it’s best to always keep the office clean.
  • Creating personal space: Where an employee has a severe allergy, you may wish to provide the employee with their own fridge, storage, and utensils. Consider supplying an additional desk for the employee as well.
  • Informing others: Where appropriate, it may be important for other employees to be aware to avoid the allergen. Make sure that first aiders know what to do in an emergency. If you have any staff members at risk of anaphylaxis, ensure that first aiders know the symptoms. They should also be trained to administer an adrenaline auto-injector, like EpiPen, Jext, or Emerade. It’s really important to handle the disclosure of information to other employees with great caution.
  • Having an allergy policy: Regarding the most common allergens, like peanuts, a policy may be appropriate. Such a ban has been demonstrated to be enforceable in the Employment Tribunal. In a 2014 case, dismissing an employee for gross misconduct was fair, as the employee had continued to eat nuts despite clear instructions, posters, and emails not to do so.
  • Considering a personalised allergy contract: Having this contract would help the employee be aware of what the employer does to accommodate their allergy. It would also clarify that the employee must bring their medication and take reasonable precautions. The employer should notify in the contract that the employee must carry their medication. You may wish to include a disclaimer that the employer is not liable for any personal injury resulting from the employee’s reaction to the environment.

If you require assistance with drafting a policy related to allergies in the workplace, get in touch with Farringford Legal and we’re happy to help.