Food allergies – an issue for employers?

Posted Wednesday 30th January 2019

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:

• Megan Lee (15) died from an asthma attack caused by an allergic reaction to a meal. The owners of the take-away restaurant (who had no systems or processes in place to manage their allergen control) were jailed for manslaughter.
• Paul Wilson (38) died of a severe anaphylactic shock to a meal in 2014. The owner had cut corners by using cheaper ingredients and swapped almond flour for peanut flour and was jailed for manslaughter.
• Natasha Ednan-Laperouse (15) died after unknowingly eating sesame seeds in an unlabelled sandwich from Pret a Manger.
  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:

• Under the Health and Safety at Work Act 1974, employers must “so far as is reasonably practicable” protect the health and safety of employees by removing or reducing workplace risks.
• If an allergy amounts to a disability, then the employer will have a duty to make reasonable adjustments for the allergy sufferer.
• An employer has a common law duty of care to its employees.  Where the risk of injury is foreseeable the employer may be at risk of a personal injury claim if it does not take steps to prevent such injury.

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:

• On an individual basis, from a risk management point of view, the exact nature and severity of the allergy should be obtained from the employee. Some people with severe allergies may have created their own action plans with the help of specialists, and these should be circulated to the employer’s first aiders.
• Consider whether the employee should be asked to identify themselves as an allergy sufferer for the benefit of any first aiders or colleagues. However, this should be handled carefully; in a recent disability case, the Tribunal found that an employee suffered harassment due to her disability when she was introduced to all the first aiders as “the diabetic”.
• Consider a general policy on the most common severe allergens; for example, a ban on consuming peanuts at desks or storing shellfish products in any communal fridge. Such a ban has been demonstrated to be enforceable in an employment tribunal; in a 2014 case a dismissal of an employee for gross misconduct was fair, where that employee had continued to eat nuts at his desk despite clear instructions, posters and emails not to do so.
• Ensuring a high level of cleanliness, especially where there is shared equipment or kitchen resources.
• Consider whether an allergy sufferer should be presented with a personalised allergy policy/contract. This would make it clear to the employee not only what the employer was doing to accommodate their allergy but would also clearly identify the employee’s obligation to carry their own medication and take reasonable precautions not to ingest any allergen. Employers should ensure they notify employees of the importance of always carrying their Epipen on their person and that this is a personal obligation. The document can also include a disclaimer that the employer cannot be held liable for any personal injury resulting from the employees’ reaction to the environment or cross-contamination.

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:

• Supplying the employee with their own storage and utensils;
• Allowing for time off to attend allergy appointments;
• Permitting an employee to have a “fixed desk” in a hot-desking environment; and
• Ensuring that the employee is not be excluded from any work functions due to their allergy.

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.

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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.

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