The employer's sickness policy included a "trigger" for formal action in the event of four periods of ill-health within a rolling 12 month period, or a total of 10 days in the same period. But the policy expressly provided that disability-related absence was not taken into account for the purposes of that standard. This did not mean that the employer could take no account of disability-related absence; rather that it was not to be used for the purposes of the trigger.
The employee was given a final written warning effective for 24 months under the policy after he had been off for a total of 206 days over a three year period. Most, although not all, of the absences were disability-related. The employee subsequently had two short periods of disability- related absence; no further action was taken in respect of those. However, following a longer period of non disability-related absence the employee was dismissed.
The employment tribunal found that it would have been a reasonable adjustment for the employer to disregard the final written warning when considering whether to dismiss the employee.
The EAT overturned the decision. The claimant had established a "PCP" (provision, criterion or practice): the need for consistent attendance at work. (The duty to make reasonable adjustments only kicks in if a PCP has been applied which puts the employee at a substantial disadvantage.) The EAT agreed that this PCP placed the claimant at a disadvantage because he was liable to dismissal if he could not attend consistently because of his disability.
However, the tribunal had not properly identified the "step" that it was reasonable for the employer to take to avoid that disadvantage. It was clear that an employer was not expected to ignore all disability-related absence and the "mental process" of disregarding a warning is not a "step" of the type envisaged by the Equality Act. As the EAT said, it would be remarkable if the fact that an employer had showed leniency in relation to disability-related absence in the past were to mean that it was required to disregard all disability-related absence in the future.
Judge Richardson in the EAT also raised a more general point – whether cases relating to dismissal for poor attendance should in fact be brought as failure to make reasonable adjustments claims. He citedGriffiths v Secretary of State for Work and Pensions earlier this year as a scenario that did not fit easily under the duty to make reasonable adjustments. In that case the EAT decided that an absence management policy that included trigger points for warnings (and which could be adjusted to cater for disability) did not place a disabled employee 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. Therefore the duty to make reasonable adjustments did not apply.
The Judge made a compelling argument for cases like Griffiths to be brought under the provisions dealing with "discrimination arising from a disability" rather than as reasonable adjustments cases. They are not really about the duty to take practical steps to prevent disadvantage and should instead be looked at from the perspective of an employer's duty to make allowances for an employee's disability.
The Judge went on to say that had this case been brought as "discrimination relating to a disability", the dismissal would still not have amounted to disability discrimination. It was legitimate for an employer to aim for consistent attendance at work and the carefully considered final warning, followed by a dismissal in response to further very substantial absence, was plainly a proportionate response.