Court of appeal clarifies duty to make reasonable adjustments

In this case the Court of Appeal was asked to consider whether an employer’s duty to make reasonable adjustments for a disabled employee is capable of applying to an attendance policy.

The facts

Ms Griffiths ‘G’ was employed by the Secretary of State for Work and Pensions (SoS) as an administrative assistant.  G suffered from post viral fatigue and fibromyalgia and was absent from work for a continuous period of 66 days, 62 of which were as a result of her disability.

The SoS operated an Attendance Management Policy which provided that formal action would be taken against an employee where absences from work exceeded 8 days in any rolling period of 12 months, (trigger point).

In May 2012 on her return to work G was given a written Improvement Warning under the Policy and informed that further unsatisfactory attendance could lead to more serious sanctions. 

After pursuing an unsuccessful grievance when G asked SoS to withdraw the warning issued for absences, mostly attributable to her disability, and to modify the Policy for the future so that she could have longer periods of absence without sanction than would be permitted to a non-disabled employee, which SoS refused, G presented a complaint to the employment tribunal of disability discrimination, comprising a failure to make reasonable adjustments required under the Equality Act. 

G argued she was put at a ‘substantial disadvantage’ by the application of the Policy.  She contended that the two reasonable adjustments that should have been made, which were:-

  1. the 62 day period of disability-related absence which led to the issue of the Written Improvement Warning should have been disregarded for attendance management purposes and the warning rescinded; and 
  2. the Trigger Point at which formal action would be taken against her should have been increased for the future by 12 days to 20 days in any rolling period of 12 months, to accommodate the fact that she was likely to have a higher level of sickness absence than non-disabled workers and to reduce her risk of being dismissed for a reason related to her disability.

Was the duty to make reasonable adjustments engaged?

1. SoS contended that the duty to make reasonable adjustments had not been triggered. 

SoS contended that the application of the Policy to G had not placed her at a substantial disadvantage in comparison to employees who were not disabled.  SoS contended that the Policy applied in the same way to all employees and a non-disabled employee with the same level of absence as G would have been subjected to the same sanctions.

2. SoS further argued that the steps proposed by G were not steps within the meaning of section 20(3) EqA, because they would not enable G to carry out her duties and might facilitate her absence from work.

Duty to make adjustments may apply to an attendance management policy

The Court of Appeal rejected the contention that the duty to make reasonable adjustments had not been triggered and the application of the Policy to Mrs G had not put her at a substantial disadvantage in comparison to employees who were not disabled. 

The Court of Appeal pointed out that the nature of the comparison was clear and one must simply ask whether the Provision, Criterion or Practice ‘PCP’ puts the disabled person at a substantial disadvantage in comparison with a non-disabled person.  The Court of Appeal held that although both may be subject to the same disadvantage when absent for the same period of time this does not eliminate the disadvantage suffered by a disabled employee who is more likely than the non-disabled colleague to be absent.

The Court of Appeal also rejected the contention that “steps” within the meaning of section 20 are confined to measures that will enable disabled employees to return to work or carry on working.  The Court of Appeal expressed its view that any modification or qualification to a PCP, which would or might remove a substantial disadvantage to a disabled person, is capable of amounting to a relevant step.  The only question is whether it is reasonable for that step to be taken.

It is worth pointing out that whilst an employer may not be under a duty to make positive adjustments to an attendance management policy this does not mean that the employer acting in accordance with the policy will automatically be entitled to dismiss the employee. The duty not to treat an employee unfavourably because of something arising from disability also requires an employer to make allowances for a disabled employee.

If the employee is dismissed, the question will still arise as to whether dismissal is a proportionate response to the employee’s pattern of absences in all the circumstances, including the important fact that the absences may be wholly or partly disability-related.  It is worth noting in this case that, ultimately, the Court of Appeal considered that the Tribunal was right to hold that disregarding the period of 62 days absence here, even though disability related, would not have been required, so the claim failed.

Comment

This case provides helpful guidance on an issue of real concern for many of you. Any organisation that operates a formal attendance policy will at some point have struggled with a request to disregard an absence, waive a warning, or vary a trigger point.

It is now clear that, in any case in which a disabled person has disability related absence which trigger the application of the policy, the duty to make reasonable adjustments will normally be engaged and it will be for the tribunals to decide on the facts of each specific case what adjustments are reasonable.