In Griffiths v Secretary of State for Work and Pensions  EWCA Civ 1265, the Court of Appeal held that the duty to make reasonable adjustments under section 20 of the Equality Act 2010 is engaged in relation to an attendance management policy if the employee's disability makes them more likely to be absent from work than non-disabled colleagues. This effectively overrides the EAT's decision in Royal Bank of Scotland v Ashton  ICR 632.
Ms Griffiths was an administrative officer at the Department for Work and Pensions (DWP) and had been employed since September 1976. In late 2009 she started to experience the symptoms of conditions that were later diagnosed as post viral fatigue and fibromyalgia. Following a 66 day absence from work, 62 of which were the result of an illness arising out of her disability, she was given a formal written improvement warning in May 2011. This was in accordance with the terms of the DWP's attendance management policy (the Policy), which envisaged the possibility of disciplinary sanctions after a specified period of absence from work, namely when there had been eight days of sickness absence in any rolling 12 months (defined as the 'Consideration Point').
Ms Griffiths raised a grievance in which she contended that, due to her disabled status, the DWP should make two adjustments to the application of the Policy to her pursuant to section 20 of the Equality Act 2010:
- Given that the lengthy absence which gave rise to the written improvement warning was the result of her disability, the DWP should not treat that absence as counting against her under the Policy, with the consequence that the written warning should be withdrawn; and
- The Policy should be modified to allow her to have longer periods of illness absence in the future than would be permitted for employees not subject to disability-related illnesses before she faced the risk of sanctions and she suggested 20 days in any 12 months.
Ms Griffiths' grievance was not upheld and her appeal was dismissed, consequently neither of the requested adjustments was made.
Employment tribunal decision
Ms Griffiths brought a claim in the employment tribunal (ET) alleging that the DWP's failure to make the adjustments she sought constituted a breach of the section 20 duty.
Before the ET it was conceded that Ms Griffiths was disabled. It was also common ground that there was a relevant provision, criterion or practice (PCP) as defined by section 20(3). The ET defined this as 'a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal'.
On a majority decision, the ET dismissed the claim concluding that no duty to make either adjustment had arisen and that in any event it was not reasonable for the DWP to be expected to make either of them. The ET concluded that the Policy did not put Ms Griffiths at a substantial disadvantage compared to a non-disabled employee so far as the sanctions were concerned.
Ms Griffiths' appeal to the Employment Appeal Tribunal (EAT) was unsuccessful, the EAT agreeing with the ET on both points. In addition, the EAT held that the claim should fail for the further reason that the adjustments sought were not of a kind which fell within the terms of section 20. Ms Griffiths appealed to the Court of Appeal.
Court of Appeal
The Court of Appeal found that the section 20 duty was engaged; the Court disagreed with the earlier tribunal decisions that this duty was not engaged simply because the Policy applied equally to everyone. It found that the duty arises once there is evidence that the arrangements placed the disabled person at a substantial disadvantage because of their disability.
The Court of Appeal took the view that any modification of, or qualification to, the PCP in question which would or might remove the substantial disadvantage caused by the PCP is in principle capable of amounting to a relevant step. The step did not necessarily need to enable the employee to return to work or carry on working.
The Court of Appeal then went on to consider whether it was reasonable for the DWP to make either of the adjustments proposed by Ms Griffiths. In this case, the Court concluded that the proposed adjustments were not steps that the DWP could reasonably be expected to take and accepted that this point had been considered satisfactorily by the ET and the EAT. This included consideration of whether, for example, a modification to the Consideration Point would have removed the disadvantage taking into account, for example, the length of Ms Griffiths' future anticipated absences. On this basis, the appeal was unsuccessful.
This decision provides clarification that the duty to make reasonable adjustments under section 20 of the Equality Act 2010 will normally be engaged where a disabled employee may be impacted by an employer's absence management policy and ensures that the rather perplexing EAT conclusions in Ashton are put to one side. An employer will need to evaluate the employee's specific disability and the levels of absence before determining what adjustments, if any, it should consider making. Most employers are already in the practice of distinguishing disability-related absences from other absences as part of this evaluation, and should continue to do so. It will be for tribunals to decide on the facts of each case what adjustments are reasonable. Claims may also be brought on the same facts for discrimination arising from a disability or perhaps for indirect discrimination.
This decision highlights that, while there are boundaries in just how far the duty to make reasonable adjustments goes, and specifically on the issue of what is 'reasonable' when applying absence management policies, employers also need to bear in mind that the duty to make reasonable adjustments is only part of the protection afforded to disabled employees.