Employers should take particular care when applying an attendance management policy to disabled employees. Overruling previous EAT authority (see our blog post), the Court of Appeal has confirmed that employers are subject to a duty to make reasonable adjustments to an attendance management policy where an employee's disability makes them more likely to be absent from work than non-disabled colleagues.
Although such a policy is applied equally to disabled and non-disabled employees (and may even include a discretion to apply it more leniently to disabled employees), the case should be analysed as the imposition of a requirement to maintain a certain level of attendance at work to avoid sanction; viewed in this way, it does put disabled employees at a disadvantage where their disability increases the likelihood of sickness absence. Therefore the duty to make reasonable adjustments does arise.
The Court did not interfere with the tribunal's ruling that, on the facts, the adjustments suggested by the employee were not reasonable. It was not reasonable to expect the employer to write off an extended period of absence of 62 days when applying the policy (which provided for formal action after 8 days' absence), as it was not a one-off condition and the medical evidence suggested that further periods of potentially lengthy absence were likely. However, where a disabled employee is likely to be subject to limited and only occasional absences, it may be a reasonable adjustment to extend the trigger point.
Employers should also bear in mind that, where an employee is disciplined or dismissed based in part on disability-related absence, the employee can also claim discrimination arising from disability, which will be unlawful unless the employer can justify the treatment as a proportionate response in all the circumstances. This will be an option for employees even where there are no reasonable adjustments required. (Griffiths v Secretary of State for Work and Pensions)