Is it a failure to make a reasonable adjustment to issue a warning to a disabled employee for excessive absence without leniency being applied to the threshold?

No, held the Court of Appeal on the facts of Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265.

This is an important case for employers managing disability-related absence and making decisions about whether to waive absence, extend absence thresholds, issue warnings for excessive absence, etc.

Ms Griffiths was employed as an Administrative Officer.  She suffered from post-viral fatigue and fibromyalgia which her employer conceded was a disability.  She had an absence of 66 days, 62 of which were caused by her disability.  In accordance with its Attendance Management Policy, on her return to work after that period of absence Ms Griffiths was issued with a written improvement warning and informed that further unsatisfactory attendance could lead to more serious sanctions.  The Policy provided that consideration would be given to taking formal action when there were absences exceeding 8 days within any rolling period of 12 months (which the Policy termed “the Consideration Point”).  There was also provision that the threshold “may be increased as a reasonable adjustment if you are disabled“.

A grievance was raised by Ms Griffiths who stated that two reasonable adjustments ought to have been made to mitigate the substantial disadvantage she suffered by the application of the Policy:

  1. Given that the lengthy absence which gave rise to the written improvement warning was the result of her disability, the employer should not have treated that absence as counting against her under the Policy with the consequence that the written warning should be withdrawn.
  2. The Policy should be modified to allow her in future to have longer periods of illness absence (12 additional days) before she faced the risk of sanctions than would be permitted for employees not subject to disability-related illnesses.

Ms Griffiths’ request for these adjustments was refused.  She then lodged an Employment Tribunal (ET) claim, complaining of a failure to make these reasonable adjustments.

The ET and Employment Appeal Tribunal (EAT) both held that the duty to make reasonable adjustments was not engaged because the Policy applied equally to all (disabled and non-disabled employees) and made provision for reasonable adjustments for disabled employees.  In any event, they held that there was no requirement to make those reasonable adjustments because Ms Griffiths did not prove that she would have suffered a “substantial disadvantage” by the application of the Absence Policy.

The Court of Appeal (CoA) overturned the finding of the ET and EAT that Ms Griffiths had not been subject to any substantial disadvantage as a consequence of the Policy; owing to her disability she was more likely to be absent therefore suffering a substantial disadvantage by the application of the Policy thus the duty to make reasonable adjustments was engaged.  The provision, criterion or practice which placed Ms Griffiths at a substantial disadvantage was as follows: “the employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions”.  The CoA, however, upheld the finding that there had been no breach of the obligation to make reasonable adjustments as the adjustments suggested by Ms Griffiths were steps which the employer could not reasonably be expected to take because:

  1. It was not reasonable to expect the employer to discount a long period of absence (which was eight times longer than the permitted annual absence before the Consideration Point is reached) and withdraw the warning as Ms Griffiths did not have a one-off medial condition and further periods of potentially lengthy absence would, on the medical evidence, be likely to arise.
  2. There was no obvious period by which the Consideration Point should be extended.  To eliminate entirely the worry and stress of being at risk of dismissal, all disability-related illness must be excluded.  Short of excluding all disability-related illness, which was not be advocated by Ms Griffiths, when lengthy further periods of absence are anticipated, the period by which the Consideration Point should be extended becomes arbitrary.  Where the alleged disadvantage is with the stress and anxiety caused to a particular disabled employee, it would be invidious to assess the appropriate extension period by such subjective criteria.
  3. If the circumstances were different and the employee was likely to be subject to limited and only occasional absences, it may be possible to extend the Consideration Point, as the Policy envisages, in a principled and rational way and it may be unreasonable not to do so.

The key message for employers is the necessity of identifying whether the disabled employee is being placed at a “substantial disadvantage” by the policy (or, in other words, by the provision, criterion or practice), otherwise the employer is not reasonably expected to make any adjustment.  Without identifying the disadvantage, it is not possible to determine what steps could be taken to eliminate it.

All that said, the CoA made clear that, on the same facts, claims may potentially also be brought under the new robust s.15 of the Equality Act (for discrimination arising from a disability) or perhaps also under section 19 (for indirect discrimination).  Accordingly, employers cannot rest easy until they are also satisfied that they are also not breaching either of these obligations.  Employers can now expect more claims for discrimination arising from disability given the prompt in Griffiths that such claims generally should be raised alongside claims for failure to make reasonable adjustments where there is a question about the management of disability-related absence.