In Griffiths v Secretary of State for Work and Pensions, following a 66-day absence from work, 62 of which were due to an illness arising out of Griffiths’ disability, she was given a formal written improvement warning. This was in accordance with the Attendance Management Policy which provides that consideration will be given to formal action being taken where absences reach an unsatisfactory level, i.e. 8 working days of sickness absence in any rolling 12 months, but which may be increased as a reasonable adjustment if the employee is disabled.

Griffiths claimed that the employer should have made two ‘reasonable’ adjustments to the application of the Policy in accordance with S.20 of the Equality Act 2010: (i) that the employer should not treat that absence as counting against her under the Policy so that the written warning should be withdrawn; and (ii) the Policy should be modified to allow her in future to have longer periods of illness absence before she faced the risk of sanctions.  An employment tribunal and the EAT dismissed her claim on the basis that: (a) no duty to make either adjustment had arisen because the policy applied to everyone, so all faced the same consequences of a sanction if the absence level triggers were met and Griffiths as a disabled person was not put at a substantial disadvantage compared to non-disabled people; and, (b) that in any event it was not reasonable for the employer to be expected to make either of the adjustments.

The Court of Appeal upheld Griffiths’ appeal in respect of (a). The ET/EAT relied heavily upon the decision of the EAT in Royal Bank of Scotland v Ashton [2011] ICR 632 for the proposition that a policy applied to all would not engage the reasonable adjustments duty because everyone was treated in the same way. The comparison exercise under S.20 is clear: does the policy put the disabled person at a substantial disadvantage compared with a non-disabled person? The fact that they are treated equally and may both be subject to the same disadvantage when absent for the same period of time does not eliminate the disadvantage if the policy bites harder on the disabled than it does on the non-disabled. If the disabled employee is placed at a substantial disadvantage the employer must take reasonable steps, treating the disabled differently than the non-disabled would be treated, in order to remove the disadvantage.

The Court, however, rejected the appeal on the reasonable adjustments point in (b). Where withdrawing the warning was concerned, the medical evidence pointed to the possibility long periods of absence in the future and it would not be reasonable to expect an employer to disregard extended periods of absence. On the question of modifying the policy to allow for longer absences, there was no clear indication of what a reasonable future trigger point should be and as future absences were likely to be lengthy, a short extension would not remove any substantial disadvantage.

The case shows that any ‘sighs of relief’ were short-lived for employers operating trigger point absence policies post-Ashton, in thinking that the duty to make reasonable adjustments for disabled people does not apply because everyone is treated in the same way. The position now is clear. If a trigger point in an absence policy leads to a sanction for a disabled employee who is thereby placed at a substantial disadvantage because of disability-related absence, then the duty to consider reasonable adjustments arises. In approaching the question of what is reasonable, employers will need to show that they have considered Chapter 6 of the EHRC Employment Code of Practice.

Content Note

The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.