Managing sickness absence can be a tricky area, particularly in the case of disabled employees, who may require more time off than others.
The application, without modification, of an employer's sickness absence policy to a disabled employee may give rise to a discrimination claim.
Under section 20 of the Equality Act, where a provision, criterion or practice (PCP) puts a disabled employee at a substantial disadvantage compared to employees who are not disabled, the employer is required to make such adjustments as are reasonable to remove that disadvantage. What is reasonable will depend on all the circumstances of the case, including:
- The effectiveness of the adjustment in removing or reducing the disadvantage.
- The extent of any disruption to the employer's business.
- The cost of the adjustment in light of the employer's financial and other resources.
A sickness absence policy will amount to a PCP. Since some disabilities can cause higher sickness absences, it follows that the strict application of the policy resulting in a disciplinary sanction, may amount to putting a disabled employee at a substantial disadvantage. Having said this, the duty to make reasonable adjustments does not mean that employers must ignore all disability-related absences when applying a sickness absence policy.
The difficult question: to what extent and at what stage do employers need to adjust their policies in order to satisfy their duty to make reasonable adjustments?
In the case of Griffiths v DWP the Employment Appeals Tribunal (EAT) considered whether an employer had breached its duty to make reasonable adjustments by issuing an improvement warning under its sickness absence policy where the employee's absence had been disability-related. TheEAT confirmed that, on the specific facts of this case, the duty to make reasonable adjustments had not arisen, and even if it had, then the adjustments sought were not reasonable.
Griffiths v DWP
Ms Griffiths worked for the DWP as an Administrative Officer. In early 2011 she had a 62-day period of continuous sickness absence and was later diagnosed as suffering from post-viral fatigue syndrome and fibromyalgia (it was accepted by both parties that she was disabled).
Prior to receiving the diagnosis, the DWP had implemented its absence management policy which triggered a "written improvement warning". The attendance policy comes into effect when an employee's absence reaches the "Consideration Point". This is set at "eight working days of sickness absence in any rolling 12 months…but may be increased as a reasonable adjustment if you are disabled".
On receipt of the written warning, Ms Griffiths raised a grievance. She claimed that she had suffered a 'substantial disadvantage' in that she suffered worry and stress as a result of the improvement warning letter being triggered. She sought two reasonable adjustments. Namely:
- that the absence period in February-May 2011 be disregarded for the purposes of the attendance policy; and
- that the number of days' absence which would activate the usual Attendance Policy provisions in the future be increased.
The DWP rejected Ms Griffiths' grievance and did not make either of the requested adjustments. Ms Griffiths brought a claim of disability discrimination for failure to make reasonable adjustments only.
The tribunal rejected the claim. By a majority, it decided that there had been no breach of the employer's duty. Ms Griffiths appealed to the EAT.
The EAT's decision
Duty to make reasonable adjustments did not arise
The EAT upheld the tribunal's decision. It considered that the duty to make reasonable adjustments had not arisen because Ms Griffiths could not establish that she had been placed at a 'substantial disadvantage' in comparison with persons who were not disabled. The EAT held that the proper comparator for this case is a non-disabled person absent for sickness reasons for the same amount of time but not for disability-related reasons. She had been treated under the policy in a no less favourable way than a non-disabled person would have been.
While she had not benefitted from the advantageous discretionary provisions of the policy directed to disabled persons, this simply underscored that all that had happened was that she failed to gain an advantage. That was not a disadvantage, substantial or otherwise.
Adjustments sought were not reasonable
Although the failure to establish a duty meant that the appeal failed, the EAT also considered whether, if a duty had been owed, the adjustments sought went beyond what was reasonable.
The EAT confirmed that the reasonable adjustments envisaged by statute were those that enable a disabled employee to return to work or carry out their work. In this case, the adjustments were about the treatment of past and future absence from work, and therefore were not within the scope of the statute.
What does this mean for absence management policies?
Employers will not usually be required to modify triggers contained within an absence management policy simply because an employee is disabled. The duty to make reasonable adjustments is to ensure disabled employees are not placed at a substantial disadvantage. It does not extend to enabling a disabled employee to have more favourable terms than non-disabled colleagues.
It is, however, important to remember that Mrs Griffiths' case concerned the trigger points for the absence management policy. What this case, crucially, did not concern was the application of the policy resulting in dismissal, demotion, or some other detriment (amounting to a substantial disadvantage). The policy did state that managers had a duty to make reasonable adjustments for disabled employees and could allow a reasonable additional amount of disability related sickness absence before any material sanctions were imposed.
Simply triggering the process did not place Mrs Griffiths at a substantial disadvantage. If the policy had been further applied with a more serious sanction without, at that stage, consideration of discounting some of her disability related absence or redeployment to another role where the levels of absence could be accommodated then Mrs Griffiths may have succeeded in her claim.