A recent case has revisited the challenging question of an employer’s obligations regarding reasonable adjustments involving absence management of disabled employees, and provides helpful guidance on the relevant approach.
Griffiths v DWP
The Court of Appeal’s decision in Griffiths v DWP restores what might be suggested to be the common sense approach to the choice of comparator in cases where there has been a failure to make reasonable adjustments in the application of an absence management procedure.
The EAT had previously adopted the view that the duty to make reasonable adjustments was not engaged where both disabled and non-disabled employees were treated the same way under an absence management policy. Hence, if the policy was applied equally the duty was not engaged. This approach attracted much criticism because it failed to take account of the possibility that a disabled employee (depending upon the stage of their condition) might be more likely to be absent, and as a result would be more likely to experience substantial disadvantage through the stress and worry of the prospect of and ultimate impact of receiving a written warning.
Ms Griffiths had a lengthy period of absence (62 days of disability-related absence) which triggered the DWP absence policy which allowed 8 days absence per annum. She was subsequently diagnosed by her GP as suffering from fibromyalgia. After she was given a written warning, she submitted a grievance arguing that her employer should have made the following reasonable adjustments:
- that the written warning should have been withdrawn, because this absence related to the period when the disability was first diagnosed and a treatment plan was put in place, and
- that the policy should be modified to allow her in future to have longer periods of absence before she faced the risk of disciplinary sanctions.
S.20 of the Equality Act 2010 states that where a provision criterion or practice (PCP) places a disabled employee at a substantial disadvantage in comparison to a non-disabled employee, an employer should take reasonable steps to avoid the disadvantage.
Ms Griffiths was unsuccessful before the employment tribunal and the EAT in her claim that the written warning amounted to a failure to make reasonable adjustments. The EAT said that no duty had arisen and, even if the duty had been engaged, the adjustments requested were not reasonable. She appealed.
While the Court of Appeal ultimately rejected Ms Griffiths appeal on the basis that the adjustments requested were not reasonable in the particular circumstances, it reviewed the authorities on whether the duty was engaged, and confirmed that it had been engaged in this case.
Adopting a different view from the EAT in the 2011 decision of RBS v Ashton, the Court explained that s.20 is not directed at treating all employees in the same way. It accepted that there could be a substantial disadvantage if the PCP was framed in the following way, by stating that “the employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions.” The Court explained that a “disabled employee whose disability increases the likelihood of absence from work on ill health grounds, is disadvantaged in more than a minor or trivial way.”
In relation to the reasonableness of the adjustments requested, the Court of Appeal agreed with the tribunal that it was not reasonable for the employer to ignore the original 62 day disability-related absence and revoke the written warning. In so doing they took into account:
- that this was not a one off condition,
- further periods of potentially lengthy absence could arise, and
- the absence itself was 8 times more than what the permitted annual absence policy envisaged.
The Court also dismissed as unreasonable the proposed adjustment that future absences should be treated differently by extending the trigger point.
This case breathes life back into claims for reasonable adjustment following a sanction for disability-related absence. But, as this case itself shows, simply because the duty is engaged does not mean that a claim will be successful, if the proposed adjustments are not reasonable.
Therefore, in practice employers which are faced with managing triggers in absence procedures can apply warnings for disability related absences, provided they assess what adjustments to the triggers may be reasonable. Before applying any warning, employers should also take into account the factors outlined in the bullets above.
The Court also gave claimants a strong steer that they should invoke the protection of s.15 of the Equality Act if they are faced with dismissal. S.15 of the Equality Act relates to disability-related discrimination which does not require a comparator. This requires an employer to demonstrate that its decision to dismiss in such cases for disability related absence was in fact proportionate.
The latter will clearly place ever more importance upon the need to secure occupational health and potentially wider medical information and opinion as to the prognosis of the employee. There may also need to be an assessment of whether the employee could be transferred to an alternative role which may better accommodate the impact of the disability. It does not mandate such a transfer, but employers should give careful consideration to the possibility of this option and be clear why such a course of action may not be suitable. This will involve a consideration of costs and the individual suitability of the employee, amongst other factors.