The Court of Appeal has overturned a decision of the EAT in Griffiths -v- Secretary of State for Work and Pensions 2015. The duty to make reasonable adjustments (s.20 Equality Act 2010) can be engaged where there is a sickness absence management policy, notwithstanding that the policy is applied equally to all staff (disabled and non-disabled).
The duty to make reasonable adjustments is engaged where there is a provision, criterion or practice (PCP) which substantially disadvantages a disabled person when compared with a non-disabled person. The Court of Appeal held that the relevant PCP was not the absence policy itself, but the fact that the employee had to maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions. A disabled employee whose absence was higher as a result of their disability could clearly be disadvantaged by this. In holding that the duty was not engaged because the policy applied equally to all employees, the EAT had made an error of law. Rather, the duty arises once there is evidence that the PCP placed the disabled person at a substantial disadvantage because of their disability.
Ms Griffiths’ appeal was ultimately dismissed because on the particular circumstances of the case, the adjustments that she had requested were not reasonable. However, this case makes it clear that the duty to make adjustments can be engaged in respect of an absence management policy, and firmly lays the previous authority to the contrary (Royal Bank of Scotland -v- Ashton 2011), to rest.