Rates of allergies have risen sharply in the last 20 years. According to national charity Allergy UK, 44 per cent of adults in the UK suffer from one or more types of allergy. As a result, it is now increasingly likely that employers will need to support staff within their workforce who suffer from allergies.
For those at greatest risk, the tiniest trace of an allergen can trigger severe symptoms and, in some cases, cause a fatal or near-fatal reaction. One high-profile case was that of teenager Natasha Ednan-Laperouse, who sadly died in 2016 after eating a Pret A Manger sandwich which contained sesame, despite sesame not being mentioned on the label.
Although Natasha was a customer rather than an employee, businesses do, of course, have a duty of care to their staff as well as their customers. Airborne allergens (which are not necessarily food-related) may cause particular challenges, especially in open-plan workplaces.
Common areas of concern for employers
If an allergy amounts to a disability under the Equality Act 2010, the employer will have a duty to make reasonable adjustments, and the employee will be protected against less favourable treatment. For allergies which are serious, it is highly likely that the definition of disability will be met.
Employers have legal obligations under health and safety legislation, so far as is reasonably practicable, to protect the health and safety of employees by removing or reducing workplace risks. Some allergy-related incidents will need to be reported under Reporting of Injuries, Diseases and Dangerous Occurrence Regulations 2003 (RIDDOR).
There is a legal duty on employers to take reasonable steps to prevent foreseeable injuries, so they could face a personal injury claim if sufficient steps are not taken. It is a good idea to seek advice from your employers’ liability insurer, who may recommend steps to take, including potentially a disclaimer.
Employees have a duty to take reasonable care of their own health and safety too, so there may be steps they need to take to protect themselves.
Care should be taken when trying to ascertain information regarding prospective employees' medical conditions, especially prior to offering a role, to avoid potential discrimination. However, you may need to make some enquiries to deal with the issue of reasonable adjustments.
Maintaining confidentiality about employees’ medical conditions ought to be considered, for example, when seeking to ensure colleagues are adequately trained to deal with the needs of specific allergy sufferers. It is a good idea to speak to the employee who suffers from the allergy to get their guidance on the support they may need, alongside taking medical advice.
If other employees breach express instructions related to protecting colleagues with allergies (eg no consumption of nuts in the office), you may need to consider taking disciplinary action.
What steps should employers take?
It is a good idea to make sure you communicate effectively with employees with allergies to ascertain the severity of their allergies and what the potential known triggers are. This will also apply if someone develops an allergy during their employment.
Asking health questions pre-employment can sometimes be unlawful, but there are exceptions, such as if they are necessary for the purposes of establishing whether the applicant will be able to carry out a function that is intrinsic to the work concerned.
Employers should seek to identify reasonable adjustments where the allergy could be a disability, for example: relocating an employee’s workstation; looking for an alternative role; providing specific equipment or materials for an allergy sufferer to use; and a policy to help prevent contamination or triggers.
Training may be important in ensuring legal obligations are met, such as first aid and the use of life-saving equipment.
It may be worth considering a general policy relating to allergens and/or clauses in the allergy sufferer’s contract, to outline the obligations on the employee to look after their health and safety too.
The affected employee is likely to have been given medical guidance about any help they would need in an emergency. The HSE has specific guides which can assist in relation to common irritants in specific industries, for example skin disease and hairdressing.
A decision may ultimately need to be taken as to whether the work environment is suitable for the allergy sufferer. If it is not reasonably practicable to avoid exposing the employee to a particular allergen, there may be grounds to terminate employment.
Elena Elsam is a senior solicitor at Pure Employment Law