In our December 2015 news round-up, we reported briefly that the Court of Appeal had dismissed an appeal against the Employment Appeal Tribunal's decision in Griffiths v the Department for Work & Pensions, in relation to the application of a long-term sickness absence policy to a disabled employee. Julian Hoskins and Gemma Griffiths provide a detailed report on the case below.
Under the Equality Act 2010, an employer is required to make a reasonable adjustment where it knows (or ought reasonably to know) that a person has a disability and there is a provision, criterion or practice (PCP) that puts a disabled person at a substantial disadvantage compared to those who are not disabled.
In Griffiths v the Secretary of State for Work and Pensions, Ms Griffiths worked for the Department for Work and Pensions (DWP) and had been absent from work for 62 days, suffering from post-viral fatigue. On her return to work, an occupational health assessment was conducted and she was found to be suffering from fibromyalgia.
The DWP dealt with Ms Griffiths' absence under its Attendance Management Policy. This provided for an escalating warning process, beginning with a written improvement notice, and culminating in action that could include dismissal or demotion. The policy was activated when an employee reached, what was referred to in the policy as, 'the consideration point'. This was eight working days' absence in any rolling 12 month period. The policy provided that the 'consideration point' could be extended as a reasonable adjustment for disabled employees.
Once Ms Griffiths reached 'the consideration point' she was issued with a written warning. No extension was granted in view of her disability. Ms Griffiths issued a claim for failure to make reasonable adjustments and contended that the DWP should have made the following two reasonable adjustments:
- the 62 day absence should have been treated as exceptional absence under the policy and disregarded, so that the written warning would have been revoked;
- 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 Court of Appeal (CA) held, contrary to the decision in the Employment Tribunal and Employment Appeal Tribunal, that the duty to make reasonable adjustments was engaged and the DWP was not entitled to treat disabled and non-disabled employees equally under the policy. However, on the facts of this case, it said that the DWP was not required to make the adjustments proposed by Ms Griffiths. because the adjustments proposed were not reasonable:
- in relation to the revocation of the warning, the medical evidence showed that further periods of absence were likely, so it was not reasonable for the DWP to disregard an extended period of absence;
- in relation to the extension of the 'consideration point', there was no obvious period by which the consideration point should be extended. Moreover, if future absences were likely to be long, a relatively short extension of the consideration point would be unlikely to remove the disadvantage. However, in different circumstances, where the periods of absence were short, it may be that such an adjustment would be reasonable.
There has been some debate in previous cases about the correct PCP for cases involving disability-related absenteeism. Previously, it had been thought that disabled people were not disadvantaged by the application of an absence management policy provided the policy applied equally to all employees, whether disabled or not, i.e. where everyone is treated the same.
However, the CA decided here that this is illogical. It is clear that disabled people may, as a result of their disability, require more regular and longer absences than non-disabled staff; a PCP of "a requirement for regular attendance at work" may put disabled people at a substantial disadvantage, and thereby trigger the duty to make reasonable adjustments.
What does this mean for me?
This case provides greater clarity on the question of how employers should deal with disability related absence. It is not the case that disabled employees are immune from warnings or dismissal for disability-related absences. However, the application of an absence management policy to a disabled employee (even if non-disabled employees are subject to the same policy) is likely to be a PCP under the Equality Act 2010, thereby triggering the duty to make reasonable adjustments.
However, it is important to remember that the reasonableness of an adjustment will depend on the particular facts of each individual case and should be focussed on reintegrating the employee back into employment.
Finally, notwithstanding the decision set out above, it is important to remember that an employee bringing a claim linked to disability related absence may also bring a claim for indirect disability discrimination and / or discrimination 'arising' from disability, under the Equality Act 2010 (both of which may be justified).