Around ten people in the UK die from food allergies every year. An estimated 44% of British adults have a food allergy, and the number is on the rise; in the 20 years prior to 2012, there was a 615% increase in the rate of hospital admissions for anaphylaxis. Tragically, there have been a number of recent high-profile cases regarding deaths from allergic reactions:
These high profiles cases have understandably caused employers to question what their legal obligations and responsibilities are towards their employees with allergies.
What are food allergies? How serious can they be?
It would be a mistake to assume that all allergies are the same; people can have allergies to different allergens and their reaction to such allergens varies from person to person – there’s no standard reaction. For example, someone with a “nut” allergy might be fatally allergic to even the smallest trace of peanuts,but could ingest almonds without any severe reaction. Another person might be able to smell, touch or even ingest a small amount of peanuts without having a fatal reaction.
It might be obvious, but allergies are significantly different to intolerances or dietary preferences. Allergies can cause a wide range of symptoms, and extreme reactions can cause breathing difficulties, unconsciousness, severe long-term medical effects or even death.
Anaphylaxis usually develops within minutes of contact and this can be with even the smallest amount of an allergen.
The Food Standards Agency lists 14 main allergens and eight of these cause 90% of allergic reactions (“the big eight”). These are milk, tree nuts, eggs, fish, shellfish, peanuts, wheat and soybeans. However, as the sad death of Natasha Ednan-Laperouse demonstrates, it would be a grave mistake to assume that only the big eight are serious; she died after eating sesame seeds.
Are allergies a disability?
There is mixed case law on this question. In one recent case, the Tribunal concluded that diet-controlled conditions (including allergies and diabetes) do not have a substantial effect on the ability of an individual to carry out day-to-day activities (one of the tests for a disability) as there are reasonable avoidance strategies available.
In another case in 2012, it was found that a chef with a severe nut allergy was disabled.
It is important to note that allergies are not specifically excluded from the definition of disability.
In practice, the question of whether an allergy sufferer is classed as disabled will depend on the severity of their allergy and the ease by which it can be controlled (and how much of an effect such avoidance or control has on day-to-day activities).
For example, if an individual has an allergy to atmospheric allergens and is unable to work in an office environment without suffering an allergic reaction, the allergy may be found to have a substantial adverse effect on day to day activities. In contrast, an allergy to a single food which can be avoided by the sufferer refraining from consuming it, is unlikely to have a substantial adverse effect on day to day activities in itself.
Why should an employer be concerned?
Although it might be easy to think that having an allergy is an issue for the employee to manage, an employer has the following obligations:
What should employers do?
The following are a few tips as to what an employer could/should do when they have employees which suffer from allergies:
If a person’s allergy is so severe as to amount to a disability, an employer should also consider whether any reasonable adjustments are possible. These may include:
As an example of what might be considered “reasonable” the Employment Appeal Tribunal (EAT) recently found that that providing a workplace free from aerosols and perfume was not a reasonable adjustment. The employee suffered from a life-threatening allergy but given the large workforce and open plan office space such an adjustment was not reasonable.
In circumstances where an employee has a severe allergy and the employer is unable to guarantee an environment will be free of that allergen then it may be possible for an employer to refuse to hire or to dismiss for that reason but only after careful consideration and after legal advice has been taken.
This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.
“Joelson helped us at a crucial time in our business as we took on our first investors. They supported us with introductions, useful advice and made handling all the practicalities of relevant transactions very easy. They were friendly and easy to work with as they understand the nature of start-ups. We’ll continue working with them as we continue growing.”
Michael Dixon, Snact