The Court of Appeal has ruled that an employer’s duty to make reasonable adjustments for a disabled employee is capable of applying to an attendance management policy where an employee’s disability leads to (or is likely to lead to) a level of absence which a non–disabled employee is unlikely to have.
In reaching this decision, the Court of Appeal overturned the Employment Appeal tribunal’s earlier ruling in the case that the duty of reasonable adjustments did not apply. As the Court of Appeal noted, in a case of this kind the effect of the absence management policy is that the employer applies a condition that the employee must maintain a certain level of attendance at work in order not to be subject to the risk of sanctions (ie warnings and ultimately dismissal). A disabled employee whose disability increases the likelihood of absence from work on ill health grounds, is disadvantaged in more than a minor or trivial way, compared with someone who is not disabled, because the likelihood of absence is higher and the stress and anxiety caused by the risk of sanctions, therefore, greater. That being the case, the duty to make reasonable adjustments is triggered.
This ruling clears up a technical, legal point but does not significantly increase the legal risks on employers. This is because, even before this ruling, it was clear that a disabled employee could challenge action taken against them under an absence management policy: disciplining or dismissing an employee for absences which are disability-related would amount to unfavourable treatment arising in consequence of disability and would, therefore, be discriminatory unless justified. So employers who do not make (reasonable) allowances for disability related absences were already at risk of claims under a different part of the Equality Act 2010, even before this judgment.
Of perhaps greater interest are the CA’s observations in relation to the reasonableness of the adjustments sought. The CA upheld the Tribunal’s decision that the employer had not failed to make reasonable adjustments. The claimant had argued that the employer should have adjusted the absence management scheme in two ways: by ignoring a 62 day disability related absence (that had resulted in a warning); and by extending the consideration point (at which sanctions kicked in) by 12 days. The ET had found that these were not reasonable adjustments and the CA refused to interfere with those findings. What was significant in this case is that there had been a long period of initial absence and further lengthy periods of absence were anticipated. The Court noted, however, that where it is clear that a disabled employee is likely to be subject to limited and only occasional absences, it may be possible to extend the consideration point in a principled and rational way and it may be unreasonable not to do so.