Employers must make reasonable adjustments to make sure disabled workers aren't seriously disadvantaged when doing their jobs. This article looks at how recent decisions in relation to attendance management policies impacts employers.
The Court of Appeal (CA) addressed the issue of reasonable adjustments for disabled employees in its recent decision in Griffiths v Secretary of State for Work and Pensions  EWCA Civ 1265. It confirmed that the duty to make reasonable adjustments may be engaged in the application of attendance management policies to disabled employees.
The Equality Act 2010 (EqA) s. 20 provides that employers have a duty to make reasonable adjustments when a provision, criterion or practise (PCP) it applies places a disabled employee at a substantial disadvantage.
The employee was long serving, having been employed for 35 years. In 2009 she began to experience symptoms of her disability and in 2011 she was diagnosed with post-viral fatigue and fibromyalgia. Her employer's attendance management policy triggered disciplinary actions when absence reached 8 working days in a 12 month period although line managers were able to increase the number of trigger days for disabled employees at their discretion to take account of days of disability related absence. In May 2011 following a block of 62 days absence, she received a formal written improvement warning in line with the policy. In response the employee raised a grievance arguing that her employer should have made two adjustments to take account of her disability:
- the written improvement notice should be withdrawn as the 62 days absence were a result of her disability and shouldn't count against her; and
- the policy should be varied so she as a disabled person could have longer periods of illness absence before the trigger points.
Her grievance wasn't upheld and neither of the adjustments were made. Bringing a claim under the EqA she argued that her employer was in breach of its duty to make reasonable adjustments, and that the PCP was applied in such a way that it put her at a substantial disadvantage. Both the tribunal and the appeal tribunal rejected her claim, concluding that as the absence management policy applied to all employees, regardless of disability, it could not place a disabled employee at a substantial disadvantage. Therefore the duty to make reasonable adjustments was not engaged. Further, that there had been no failure as the requested adjustments were not reasonable.
The CA decided that there had been no failure by the employer to make reasonable adjustments, although absence management policies were capable of being subject to reasonable adjustments. It decided that the correct approach was to determine whether the PCP put the disabled person at a substantial disadvantage in comparison with a non-disabled person, and the duty to make reasonable adjustments arises 'once there is evidence that the arrangements placed the disabled person at a substantial disadvantage because of her disability'. It will not matter if both the disabled and non-disabled are treated equally if the application of the PCP effects the disabled employee more.
What is reasonable?
Any adjustment to a PCP that eliminates a substantial disadvantage can amount to a reasonable adjustment. What is reasonable will depend on the particular facts and circumstances of each case, and will be effected by several factors including the effectiveness of the step, the financial costs and whether it is practicable for the employer to take this step.
Acas recently issued 'Disability discrimination: key points for the workplace' which provides helpful guidance for both employers and employees. It addresses how and when discrimination can occur in the workplace and identifies 3 main questions an employer should consider when assessing what reasonable adjustment might need to be made:
- Do you need to change how things are done?
- Does the workplace need to be physically changed?
- Does extra equipment of assistance need to be provided?
Employers should make reasonable adjustments where they are aware of an employee's disability and that includes adjustments to attendance management policies, having regard to the impact the disability may have on the employee's attendance and adjust the number of trigger days accordingly.