Life-threatening allergies, in particular food allergies, have been in the news a lot recently. See, for example, the recent widespread coverage of the death of Natasha Ednan-Laperouse after eating a Pret a Manger sandwich that contained ingredients she was allergic to.
Due to the increased prevalence of severe food allergies in the UK, it is becoming more important for employers and HR professionals to have a good understanding of them, and to consider how best to handle severe allergies in the workplace.
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It’s hard to get precise statistics, but an estimated 1% to 2% of adults in the UK have a diagnosed food allergy. These are not to be confused with food intolerances (which are unpleasant but not life-threatening). Experts across the globe agree that the prevalence of food allergies is rising but nobody really understands why. According to the NHS, the most prevalent adult allergies are to peanuts, tree nuts (e.g. almonds, hazelnuts), fruit, fish and shellfish.
Every diagnosed food allergy should be treated as potentially life-threatening.
Allergy experts agree that previous reaction history is no more an indicator of the severity of future reactions. Allergies are unpredictable and it is not uncommon for someone who has previously had a ‘mild’ reaction to their allergen to experience life-threatening anaphylaxis on a subsequent occasion.
The increase in food allergies means that employers are likely to encounter more and more people with food allergies among their workforce. An employer whose workforce includes an individual with a food allergy will need to consider how best to handle that worker’s allergy in the workplace (including how to minimise the risks the worker faces).
Disability discrimination
It may not be immediately obvious to many HR professionals (or indeed allergy sufferers) but a life-threatening allergy can count as a disability for the purposes of the Equality Act 2010.
A worker is considered disabled for the purposes of the Act if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out day-to-day activities (which can include preparing and eating food).
In Wheeldon v Marstons the employment tribunal held that a chef with a severe nut allergy was disabled because the effect of the allergy on his day-to-day life was significant; requiring him to restrict his diet and take extra care in the preparation of his meals (which in turn meant he could not socialise freely).
Therefore, when dealing with a worker with a severe food allergy, the employer will need to consider the positive duty to make reasonable adjustments (which might include stopping other workers bringing an allergen into the workplace, making sure any business lunches are safe for the worker to eat, and perhaps changing duties so the worker does not come into contact with their allergen).
Employers should also take steps to ensure that the worker is not treated less favourably because of their severe allergy (or for a reason arising from that allergy, such as increased absences due to post-reaction hospitalisation). The employer should also be alive to the possibility of indirect discrimination if any provision, criterion or practice (which cannot be objectively justified) puts those with severe allergies at a particular disadvantage.
Health and safety, and data protection
Health and safety is another big issue for an employer to consider.
For example, can steps be taken to minimise the worker’s likelihood of contact with the offending allergen? Have designated first-aiders been trained in EpiPen use? (It does not form part of standard first aid training but add-on courses are available and many allergy sufferers will be prepared to demonstrate the techniques using a training device if asked).
It is best practice to obtain a worker’s consent to share details of their allergy with colleagues/first-aiders because information about a person’s allergy is classed as special category data under the GDPR/Data Protection Act 2018 and special safeguards therefore apply.
With a bit of thought and preparation employers can do a lot to make their workplaces more allergy-friendly and reduce the risks both they and their workers with allergies face.
Emma Ahmed is a professional support lawyer at Hill Dickinson
