Following her diagnosis of deep vein thrombosis, the claimant inProspere v Secretary of State for Justice had two significant periods of absence from work. Her employer's Management Attendance Policy (MAP) provided for disability leave, usually agreed in advance, for the specific purpose of assessment, rehabilitation or treatment.  All other sickness absence, including for a reason related to a disability, was considered as sickness absence and managed as such under the MAP. 

As a result of her absence being treated in the same way as sickness-related absence for non-disability related reasons, she became subject to an Attendance Review Meeting (ARM) and the threat of a written warning.  In the event, she was not given a warning. However, she complained of discrimination arising from a disability and a failure to make reasonable adjustments, arguing that:

  • The employers operated a provision, criterion or practice (PCP) – treating her absence in the same way as sickness absence – that put her at a substantial disadvantage in comparison with those without a disability.
  • A reasonable adjustment to the MAP would be to discount all or some of her disability- related absence.

Although the Tribunal found in her favour the EAT overturned this. The Tribunal had not properly identified the PCP.  As the EAT pointed out, this is crucial to the employer's defence.  To defend a claim of disability-related discrimination, the employer has to show that the treatment as a result of the application of the PCP is a proportionate means of achieving a legitimate aim.  Likewise, the steps which an employer is obliged to take under the duty to make reasonable adjustments also hinges on the precise PCP.

The PCP identified by the Tribunal at the start of the hearing was that the employer treated disability-related absence no differently from other sickness absence for the purposes of the MAP. But the PCP the Tribunal applied in its judgment, which had not previously been identified as an issue, was the policy of arranging an ARM without exercising the option, included in the MAP, of having a case conference first.  

In addition, the Tribunal had not carried out the required balancing act between the discriminatory effect of the PCP and the need for the employer to operate it.   The Tribunal clearly accepted that the employers had a legitimate aim in devising and implementing their MAP – the need to manage attendance consistently under one policy. The employers had provided evidence showing why they adopted that procedure and the consequences for them of adding another step; but this does not appear to have been considered properly. The case was sent back for a rehearing.