Ms Griffiths worked for the Department for Work and Pensions (DWP). She was given a written warning following the DWP’s application of its attendance policy following spells of disability related absences (and a long spell of non-disability related absence). Ms Griffiths lodged a grievance about the written warning she’d received and she asked for two reasonable adjustments to be made:
- For her disability related absence to be disregarded for the purpose of the attendance policy and a withdrawal of the written warning; and
- A delay in the absence ‘trigger’ (which would usually give rise to warnings) for her under the DWP’s policy to be extended in the case of future absence.
The DWP rejected Ms Griffiths’ grievance and she brought a claim in the Employment Tribunal alleging that there had been a failure to make reasonable adjustments. Surprisingly, Ms Griffiths did not bring a claim under section 15 of the Equality Act 2010 for less favourable treatment because of something arising out of her disability.
The Employment Tribunal (ET) rejected Ms Griffiths’ claim on the basis that the alleged ‘provision, criterion or practice’ (PCP) of the application of the absence policy applied to everybody – persons with the same level of sickness absence who were not disabled would also have received a warning. On that basis the ET considered that a comparative substantial disadvantage had not arisen. The Tribunal also held in any event, that the proposed adjustments were not reasonable.
Ms Griffiths appealed to the Employment Appeals Tribunal (‘EAT’). The EAT upheld the ET’s finding that Ms Griffiths was not being put to any substantial disadvantage in comparison to non-disabled employees and also that the duty to make reasonable adjustments did not therefore arise. The EAT took this position because the absence policy applied to all employees, disabled or not, with the same level of absence.
The EAT stated that, in any event, if a duty to make reasonable adjustments in relation to the absence had arisen, it would not have found the adjustments sought by Ms Griffiths to be reasonable, given that reasonable adjustments in the circumstances should help a disabled employee to carry out their work or to return to work after a disability-related absence. The adjustments sought in this case however, related to how absence from work should be treated, and therefore fell outside the scope for which reasonable adjustments were required.
Ms Griffiths appealed to the Court of Appeal ('COA'). Although her appeal was dismissed on a separate point, the COA provided valuable and extensive non-binding guidance on the principles to be applied in similar cases. The COA disagreed with the EAT and held that where an employee’s disability leads to a level of absence which a non-disabled employee is unlikely to have, a strict application of an attendance policy which requires attendance at a certain level will inevitably put a disabled employee at a substantial disadvantage. A duty to make reasonable adjustments does technically therefore arise.
The question for ETs should be to go on to consider whether it is reasonable for an employer to vary or make ‘reasonable adjustments’ to the terms of an attendance policy for staff off sick for disability related reasons. The COA found in this case that the ET was entitled to decide that the proposed adjustments were not reasonable as the decision making process would be too arbitrary and subjective and possibly encourage absence rather than attendance.
This COA decision on the reasonableness of amending an attendance policy in this case falls into line with established previous case law, where it has been held that employers should not need to increase sick pay for disabled staff on sickness absence where they were otherwise not entitled to an increased amount.
What does this mean for you or your business?
Where disabled Claimants are absent for extended periods of sick leave, even if this is with disability related absences (which are not the result of anything the employer has done or failed to do), they will generally find it difficult to pursue a claim for failure to make reasonable adjustments.
Employees are likely to be advised in future to pursue S.15 ‘discrimination arising from disability’ claims instead or as an alternative to a reasonable adjustment claim as the hurdle to clear in ET is lower than a reasonable adjustments claim in these circumstances.
What do you need to be doing now?
If you have cases similar to this case, employers will still need to consider whether it is reasonable to make adjustments to attendance policies if staff request them. ETs will still want to see an employer’s objective decision making thought process should the matter go to Tribunal even if no such adjustments are subsequently made.
As employees are more likely to bring S.15 claims for discrimination arising from disability in absence management cases, employers need to make sure that they have clear evidence of an objective justification for any less favourable treatment of absent employees.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.