The claimant in Griffiths v Secretary of State for Work and Pensionshad 62 days' absence for post-viral fatigue.  She also suffered from fibromyalgia and was disabled within the meaning of the Equality Act.  Under the employer's absence management procedure, an employee could be issued with a formal warning if their absence level exceeded eight days in any rolling 12 month period.  Although the policy provided that the trigger point could be flexed for disabled employees, no such adjustment was made for the claimant and she received a written warning.  She complained that the employer had failed to make reasonable adjustments.

The duty to make reasonable adjustments only kicks in if a "provision, criterion or practice" has been applied which puts the employee at a substantial disadvantage.  This has to involve a comparison of the employee's treatment with that of non-disabled colleagues.

The EAT upheld the tribunal decision that the absence management policy did not place the claimant at a substantial disadvantage; the claimant had been treated in the same way as a non-disabled employee absent for the same length of time.  There was therefore no duty to make reasonable adjustments.

A word of warning: this is a different approach from that taken last year in HMRC v Whiteley, where the EAT concluded that medical evidence – that periods of absence of a few days three or four times a year would have been expected for an asthma sufferer – should have been acknowledged and the period of absence used to calculate absence levels discounted as a result.  Whitleley is not referred to in this decision.