Decision: The Court of Appeal has disagreed with the ET and EAT as to whether the duty to make reasonable adjustments was engaged in connection with the trigger point for taking disciplinary action under a sickness absence policy. The Court of Appeal confirmed that the duty to make reasonable adjustments was engaged, as there was a provision, criterion or practice (“PCP”) which placed the disabled employee at a substantial disadvantage compared to those who were not disabled. The appropriate formulation of the PCP was not the policy itself but instead the requirement to maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions. Once the PCP was formulated in this way, it was clear that this requirement would substantially disadvantage disabled employees. Ultimately, this did not assist the employee, as the Court of Appeal found that the ET was entitled to conclude that the adjustments proposed by the employee (which entailed disregarding a 62 day absence and extending the trigger point) were not reasonable for the employer to make. The employer therefore did not fail to make reasonable adjustments for the employee by failing to disregard periods of sickness absence and by not extending the trigger point for taking disciplinary action under the sickness absence policy.

Impact: This decision provides some clarity, indicating thatsanctions under absence managementprocedures are subjectto the duty to make reasonable adjustments. Employers should, however, proceed with caution when handling sickness absences and related disciplinary action. Formulating the PCP correctly is vital when considering whether the duty to make reasonable adjustment applies. The Courtof Appeal also indicated thatthere mightbe circumstances where a relatively shortextension of the trigger pointcould be an appropriate reasonable adjustment. However, this would need to be considered on a

case-by-case basis. A further pointof interest is the Courtof Appeal’s emphasis on section 15 of the Equality Act 2010, addressing ‘discrimination arising from disability’. The employee in this case did notmake a claim under this provision butshe may have been more successful had she had done so.

Griffiths v The Secretary of State for Work and Pensions [2015] EWCA Civ 1265