2nd December 2021

Employment Law Advent Calendar: Day 2

It’s the 2nd of December and I have more employment law hints and tips to give employers some elf-confidence to get through the Festive Season. So who or what is behind ‘door’ 2 of the employment law advent calen-deer?

It’s peanuts. And almonds, milk, eggs and other allergens.

It’s a well-known fact: office cakes, bakes and sweets make a workplace happy and as we countdown to Christmas. Those of us who have returned to the office, in some shape or form, are ecstatic because the treat table is overflowing with Christmas goodies! However, those goodies, whether shop-bought or homemade, will almost certainly contain allergens and as we all know, allergens can be life-threatening for some.

Could an allergy be a disability?
Employers may not have realised that an allergy could be a disability under the Equality Act 2010. The Employment Tribunal in the case of Wheeldon v Marstons found that a chef with a severe nut allergy was disabled because the effect of the life-long allergy on his day-to-day life was more than minor or trivial. His allergic reaction could be life-threatening and he had to “rule his life”. This risk included carrying adrenaline injectors with him at all times, restricting his diet, taking extra precautions when preparing his meals and being unable to socialise freely.

How does an employer avoid disability discrimination claims?
If the allergy is serious enough to be a disability, an employer will need to think about:

  • Making reasonable adjustments such as taking steps to minimise the risk of coming into contact with whatever it is the employee may be allergic to. No one wants to be Scrooge and stop others from bringing Christmas treats into work, but if they are home-made you can start by asking for all ingredients to be clearly listed.

    How to avoid the employee being treated less favourably because of their severe allergy?
  • An employer might believe they are being both thoughtful and safe by not passing round the tin of Quality Street (other sweets are available) they bought for the office to share to the employee with the allergy, but that employee has been offered nothing and everyone can see that. It wouldn’t take much to buy them an equivalent free sweet treat and avoid less favourable treatment.
  • Whether they have a provision, criterion or practice (which cannot be objectively justified) that puts those with severe allergies at a particular disadvantage. For example, an employer’s requirement that everybody attends a charity Christmas bake sale and pose for pictures with the baked goodies. While they may not be expected to buy anything, it will bring allergy sufferers into close contact with their allergen.

What can an employer do to keep their employees safe and avoid discrimination?

  • Talk to the employee about their allergy to better understand how it affects them and what steps it can take to make sure it is on the (snow)ball when it comes to avoiding or minimising risk to the employee.
  • Get the employee’s permission to share details of their allergy with colleagues and first aiders (this is special category data under GDPR) to avoid or minimise risk and ensure first aiders are trained and as cool as cucum-brr in delivering any necessary first aid.
  • Think about how you can make the workplace as inclusive as possible to ensure no allergy sufferer is left out in the cold this Christmas.

Make sure you elf a merry little Christmas and contact a member of the Blackadders Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland for help and advice.

Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law
Employment Law
Blackadders LLP



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