Case update (1): Disability discrimination – sickness absence policies

Summary: Is the trigger for disciplinary sanctions under a sickness absence policy subject to the duty to make reasonable adjustments?

Yes says the Court of Appeal in Griffiths v The Secretary of State for Work and Pensions available here.

Facts: Ms Griffiths, the employee, was an administrative officer and had worked for the Department for Work and Pensions (DWP) for 35 years. In 2009 Ms Griffiths began to experience symptoms of her disability and in 2011 she was diagnosed with post-viral fatigue and fibromyalgia. The DWP’s attendance management policy triggered disciplinary actions when absence reached 8 working days in a 12 month period. However, the policy provided that the consideration point could be extended as a reasonable adjustment for disabled employees.

In May 2011 following a block of 62 days absence, Ms Griffiths received a formal written improvement warning in line with the policy. No extension was granted in view of her disability. Ms Griffiths brought a grievance in which she claimed that the DWP had failed in its duty to make reasonable adjustments. Ms Griffiths argued that DWP should have made two adjustments to take account of her disability:

• that the written warning should have been withdrawn, because this absence related to the period when the disability was first diagnosed and a treatment plan was put in place; and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.

Ms Griffiths’ grievance wasn’t upheld and neither of the adjustments made. Ms Griffiths brought a Tribunal claim for disability discrimination due to failure to make reasonable adjustments. Ms Griffiths argued that the DWP should have made the following two reasonable adjustments to remove the disadvantage:

• The 62 day absence should have been treated as exceptional absence under the attendance policy and disregarded such that the written warning would have been revoked; and

• The consideration point should have been extended by an additional 12 days with the effect that no disciplinary action would be considered until after 20 days’ absence.

The Tribunal dismissed the claim. Ms Griffiths appealed to the EAT which also dismissed the claim. The EAT held that as the absence management policy applied to all employees, regardless of disability, it could not place a disabled employee at a substantial disadvantage and that the adjustments sought were not steps which the DWP could reasonably be expected to take.

Ms Griffiths appealed to the Court of Appeal. The Court dismissed the appeal.

However, the Court did overturn the EAT’s finding in relation to the duty to make reasonable adjustments. The Court held that disabled employees could be put at a substantial disadvantage by an absence policy if an “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.”

The Court decided that the correct approach was to determine whether the “provision, criterion or practice” (PCP) in this case an absence policy, put the disabled person at a substantial disadvantage in comparison with a non-disabled person. The duty to make reasonable adjustments arises once there is evidence that the PCP places the disabled person at a substantial disadvantage because of their disability. It will not matter if both the disabled and non-disabled are treated equally if the application of the PCP affects the disabled employee more.

In relation to the facts of this case, however, the Court of Appeal agreed with the EAT that it was not reasonable for the DWP 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.

Implications: This decision helps clear up the confusion surrounding reasonable adjustments and absence management policies. It clarifies that employers should have regard to the duty to make reasonable adjustments when issuing disciplinary warnings for sickness absence.

However, as this case itself shows, simply because the duty to make reasonable adjustments is engaged, this does not mean that a claim will be successful. The proposed adjustments still need to be reasonable. Ultimately, it will be for Tribunals to decide on the facts of each case what adjustments are reasonable.

In practice employers will need to evaluate the employee’s specific disability and the levels of absence before determining what adjustments, if any, it should consider making. Most employers are already in the practice of distinguishing disability-related absences from other absences as part of this evaluation, and should continue to do so. Before applying any warning, employers should also take into account the factors taken into account by the Court of Appeal on the facts of this case, as outlined in the bullets above.