Many large employers have formal attendance policies, under which specified amounts of absence trigger formal disciplinary action. The question of how or indeed whether to adjust these policies when it comes to disabled employees is a regular source of uncertainty for HR professionals. Many policies, including the one that gave rise to the claim discussed in this briefing, contain discretionary powers for managers to disregard certain levels of absence for disabled employees.
The recent Employment Appeal Tribunal (EAT) decision in the case of Griffiths v Secretary of State for Work and Pensions UKEAT/0372/13 has helped to provide some clarity around this issue.
Ms Griffiths worked for the Department for Work and Pensions (DWP). In early 2011 she was off sick for a consecutive period of 62 days. The cause of her absence was said to be post viral fatigue and this diagnosis was subsequently confirmed by a consultant. An occupational health (OH) report received later in the year confirmed that Ms Griffiths suffered from post viral fatigue syndrome and fibromyalgia. The OH report stated that Ms Griffiths would fall within the definition of "disabled" as set out in the Equality Act 2010.
Before this report was received, Ms Griffiths had been issued with a written improvement warning under her employer's attendance policy. She subsequently lodged a grievance about the fairness of being issued with a warning. Although the OH report had not yet been received, Ms Griffiths asserted in her grievance that she was disabled and set out two reasonable adjustments that she believed the DWP should make. They were:
- First, that her absence from February to May 2011 be disregarded for the purposes of the attendance policy and the warning she had been issued with be withdrawn.
- Secondly, that the "consideration points" at which warnings would usually be issued under the terms of the policy should be extended in Ms Griffiths' case in the future.
The DWP rejected Ms Griffiths' grievance and this decision was upheld on appeal. Ms Griffiths
brought an employment tribunal claim alleging that there had been a failure to make reasonable adjustments.
Employment tribunal decision
The employment tribunal rejected Ms Griffiths' claim. It found that Ms Griffiths had not been treated less favourably than any non-disabled persons would have been and that the operation of the attendance policy did not, therefore, put Ms Griffiths at a particular or substantial disadvantage when compared to non-disabled colleagues. Ms Griffiths appealed.
The EAT considered previous case law that had arisen in similar situations. It noted that the case law had established that "in order to uphold a claim that there has been a breach of the duty to make reasonable adjustments and, thus, discrimination – [the Employment Tribunal] must be satisfied that there is a provision, criteria or practice which has placed the disabled person concerned not simply at some disadvantage generally but at a disadvantage which is substantial…in comparison to persons who are not disabled."
In light of this, the EAT found that the tribunal's finding that Ms Griffiths was not being put to any substantial disadvantage in comparison to non-disabled employees was correct. The duty to make reasonable adjustments did not therefore arise.
If it had, the EAT stated that it would not have found the adjustments sought by Ms Griffiths to be reasonable in any event. In reaching this conclusion, the EAT accepted the argument that the purpose of "reasonable adjustments" is to enable a disabled employee to carry out his work or to return to work after a disability-related absence. The adjustments sought by Ms Griffiths related to how her absence from work should be treated. It therefore fell outside the scope of the reason for which reasonable adjustments are required.
This is a helpful case, which will reassure employers that attendance policies involving the operation of trigger points will not automatically disadvantage disabled employees. Similarly, a failure to exercise any discretion provided for in the policy will not automatically amount to a failure to make reasonable adjustments.
However, it could be argued that had Ms Griffiths brought a different type of claim she might have succeeded. The policy in question did contain a discretionary power to adapt the trigger points for disabled employees. It could not therefore be argued to be indirectly discriminatory because it would not necessarily put disabled employees at a particular disadvantage compared to non-disabled colleagues.
However, a claim for discrimination arising from a disability may have had more traction. This type of claim would require Ms Griffiths to have demonstrated that she had been treated unfavourably because of something arising in consequence of her disability. Her lengthy absence clearly arose in consequence of her disability and Ms Griffiths was treated unfavourably. She would not have needed to point to a comparator and a claim under this section of the Equality Act is therefore more likely to have succeeded. To defend the claim, DWP would have needed to demonstrate that its treatment of Ms Griffiths could be objectively justified. The operation of an attendance policy so as to monitor and encourage employee attendance is very likely to be considered a legitimate aim; the key question will therefore be whether in the specific circumstances, a failure or refusal to soften the impact of an attendance policy in respect of disabled employees is proportionate.
It is therefore important that, despite the seemingly positive nature of this decision, employers do not take a "one size fits all" approach to sickness absence.