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Reasonableness Reconsidered

The Court of Appeal has handed down a judgment focusing on the duty to make reasonable adjustments and whether or not that duty can be applicable to an absence management policy.

You may remember that we reported on the case of Griffiths v Department for Work and Pensions back in June 2014, highlighting a common issue for employers; whether “trigger points” for taking action under an absence management policy must be adjusted to take account of disability-related absences. The Employment Appeal Tribunal (EAT) decided at the time that attendance policies applied equally to all staff. Both disabled and non-disabled staff were treated the same and there was no substantial disadvantage caused.

The decision made it almost impossible for disabled employees to establish that the duty to make reasonable adjustments arose in respect of trigger points.

Background

Mrs Griffiths had worked for the Department for Work and Pensions (DWP) since September 1976. In 2009 she was diagnosed with post viral fatigue and fibromyalgia. She was disabled under the Equality Act 2010.

Mrs Griffiths was given a written warning under the DWP’s attendance policy after a 66 day absence from work. 62 of those days were found to be disability-related absence. Mrs Griffiths lodged a grievance with her employer about the fairness of being issued with a warning and sought two adjustments to the application of the attendance policy;

  1. That her disability-related absence be disregarded for the purposes of the attendance policy and the warning she had been issued with be withdrawn.
  2. That the trigger points at which warnings would usually be issued under the terms of the policy should be extended in Mrs Griffith’s case in the future.

The DWP rejected the grievance. Mrs Griffiths brought a claim in the employment tribunal alleging that there had been a failure to make reasonable adjustments.

Tribunal and EAT decision

Mrs Griffith’s claim was rejected by the Employment Tribunal (ET). She appealed to the EAT but the tribunal’s finding was upheld and it was decided that Mrs Griffiths had not been put to any substantial disadvantage as a result of her disability in comparison to non-disabled employees. Therefore, the duty to make reasonable adjustments did not arise.

The rationale for the ET and EAT’s decision was that the attendance policy applied to all employees, whether they were disabled or not, with the same level of absence. The EAT found that the adjustments sought by Mrs Griffith’s related to how absence from work should be treated and therefore fell outside the scope for which reasonable adjustments are required – to enable employees to engage in work without suffering a substantial disadvantage.

Court of Appeal

The Court of Appeal (CA) held that a disabled employee can be placed at a substantial disadvantage by a requirement to maintain a certain level of attendance in order not to be subjected to disciplinary sanctions. Their disability is likely to increase the likelihood of being absent from work.

Is it reasonable for the employer to adjust the rules of the policy in the particular circumstances?

In the case of Mrs Griffith’s, the CA found that the that the ET was entitled form the view that the proposed adjustments were not steps which the employer could reasonably be expected to take and therefore, the adjustments were not reasonable.

The CA commented that there was no obvious period by which the ‘consideration point’ could be extended. It may be the case that trigger points could be adjusted to take account of short disability-related absences but it in this case it wasn’t reasonable to expect the DWP to disregard the extended period of absence.

Comment

Where a disabled employee has disability related absences which trigger the application of an absence policy, the duty to make reasonable adjustments will be engaged. However, each case will vary, and to what extent adjustments to e.g. trigger points are reasonable will depend on the facts. The decision of the CA suggests that it may be reasonable to disregard short periods of absence but not lengthy periods.

In addition to claims for a failure to make reasonable adjustments, disabled employees can bring a claim for discrimination arising from a disability in relation to absence trigger points. To defend such a claim, an employer would need to show that any treatment was a proportionate means of achieving a legitimate aim.

If you have any questions regarding reasonable adjustments or managing sickness absence or have any other employment law queries, please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600.

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