Griffiths v Secretary of State for Work and Pensions (Griffiths)

The Court of Appeal has dismissed a claim that an employer failed to make reasonable adjustments for an employee’s disability under section 20 of the Equality Act 2010 (EqA) as the proposed adjustments had not been reasonable in all the circumstances.

Facts

Under section 20 of the EqA an employer has a duty to make reasonable adjustments where it knows (or ought reasonably to know) that a person has a disability and there is a provision, criterion or practice (PCP) which places the disabled person at a substantial disadvantage compared to those who are not disabled. Failure to make a reasonable adjustment amounts to discrimination.

The appellant employee, Ms Griffiths, appealed against the Employment Appeals Tribunal’s (EAT) dismissal of her appeal against a decision that the respondent employer’s failure to make reasonable adjustments for her disability did not breach section 20 of EqA.

Ms Griffiths was an administrative officer at the Department for Work and Pensions (DWP). Following a 62 days absence from work due to post-viral fatigue, an occupational health assessment was conducted and she was found to be suffering from fibromyalgia.

The DWP had an attendance management policy which was activated when an employee reached ‘the consideration point’. This was eight working days’ absence in any rolling 12 month period; this could be extended as a reasonable adjustment for disabled employees.

When Ms Griffiths had reached the consideration point she was issued with a written warning. No extension was granted in respect of her disability. Ms Griffiths’ trade union brought a grievance on her behalf in which she claimed that DWP had failed in its duty to make reasonable adjustments as DWP should have treated the 62 day absence as an exceptional absence and that the written warning should have been revoked.   She also contended that the consideration point should have been extended by an additional 12 days with the effect that no disciplinary action would be considered until after 20 days’ absence.

The employment tribunal (ET) dismissed the claim holding that the duty to make reasonable adjustments was not engaged. It went on to consider whether the adjustments were reasonable in any event and concluded that they were not. Ms Griffiths appealed.

The EAT dismissed the appeal and upheld the decision of the ET on the same grounds. The  PCP relied on was ‘a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal.’ The EAT held that as the policy was applied to all employees in the same manner, neither disabled nor non-disabled employees could be disadvantaged. It acknowledged that the policy contained a special further provision for disabled people.

However, it did not consider it was necessary to apply these in order to discharge the duty to make reasonable adjustments. It agreed with the ET that Ms Griffiths had not been put to a substantial disadvantage. It also held that the ET had been entitled to find as a matter of fact that the adjustments were not reasonable. Ms Griffiths appealed to the Court of Appeal.

Outcome

The Court of Appeal dismissed the appeal, upholding the finding that the adjustments  sought were not steps which the employer could reasonably be expected to take. However it overturned the EAT’s finding in relation to the duty to make reasonable adjustments.

The duty to make reasonable adjustments

The decisions of the ET and the EAT both followed the decision in The Royal Bank of Scotland v Ashton (Ashton), which was factually very similar to Griffiths. In Ashton the EAT concluded that the employee was not subject to any disadvantage by the attendance management policy.

However in the judgment in Griffiths, Elias LJ identified what he considered to be a number of errors in the reasoning of Ashton.

The first error was the way in which the PCP had been formulated. In Ashton the EAT had accepted that the PCP was the sickness absence policy itself. The policy applied equally to all employees but gave special allowances for disabled people; formulating the PCP in this way was incorrect as it led to the inescapable conclusion that disabled employees could not be disadvantaged by it.

Elias LJ said that the PCP which should have been applied in Ashton, and consequently by the ET in Griffiths, was the requirement to maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions. When the PCP is formulated in this way it becomes clear that this was a requirement that would substantially disadvantage disabled employees whose disability increases the likelihood of absence from work.

Elias LJ also said that in Ashton the pool for comparison had been incorrectly identified. The EAT had followed another case which stated that the comparator must be similarly placed to the disabled claimant in all relevant respects, save for the disability. However, applying this comparator in circumstances where disabled and non-disabled employees are treated alike inevitably leads to a finding that no discrimination has occurred.

The Court of Appeal therefore held that both the ET and EAT has been wrong in reaching its conclusion that the reasonable adjustments duty was not engaged simply because the absence management policy was applied equally to everyone. The duty arises once there is evidence that the arrangements place the disabled person at a substantial disadvantage because of the person’s  disability.

Points to note

This case has determined the position surrounding reasonable adjustments and absence management policies by holding that triggers from disciplinary sanctions under such policies are subject to the duty to make reasonable adjustments.

The trouble with Ashton was that it abolished the duty to make reasonable adjustments through establishing an incorrect PCP. It is therefore vital to correctly formulate the PCP in order to be able to demonstrate the disadvantage to which the claimant has been put.

It is also worth noting that claimants should ensure their claims are appropriately pleaded by bringing complementary claims of discrimination arising from disability and indirect discrimination where appropriate.