The Court of Appeal has made clear that employers should consider the duty to make reasonable adjustments for disabled employees when considering warnings for sickness absence.
In a case where victory was claimed by both unions and employer groups, Griffiths v Secretary of State for Work and Pensions was concluded in the Court of Appeal in late 2015.
Ms Griffiths was employed by the Department for Work and Pensions and had a number of absences, mainly due to her disability. The DWP utilised an attendance management policy utilising triggers where action was taken where an employee had absences exceeding eight days in any rolling period of 12 months.
Ms Griffiths had a period of absence lasting 62 days and received a warning under the policy. She complained to the Employment Tribunal arguing that the DWP should have made one of two reasonable adjustments so that she wouldn’t get the warning:
1. The period of disability related absence should be disregarded; or
2. The trigger for the warning be increased from 8 days to 63 days.
DWP claimed that the duty to make reasonable adjustments had not been triggered. Their argument was that the policy applied to both Ms Griffiths and non-disabled employees equally (in fact disabled employees were treated slightly more favourably) and therefore she had not been placed at a substantial disadvantage.
DWP also argued that the adjustments proposed were not reasonable.
The Tribunal and the Employment Appeal Tribunal accepted the DWP’s arguments and dismissed Ms Griffiths’ claims.
The Court of Appeal determined that whilst a disabled and non-disabled employee may be subjected to the same disadvantage when absent for the same period of time, this would not eliminate the substantial disadvantage suffered by the disabled employee.
The Court of Appeal found that Ms Griffiths was placed at a substantial disadvantage by the policy because she was more likely than a non-disabled employee to be absent because of her disability. Therefore she suffered a substantial disadvantage for reasons relating to a disability.
However, the Court of Appeal agreed with the Tribunal and the EAT that the adjustments proposed were not reasonable.
In a case where a disabled employee has disability related absence which triggers an absence management policy, there will be a duty to make reasonable adjustments. However, this does not necessarily mean that employers are under a duty to amend their policies. But it should be considered.
The Court of Appeal also reiterated that absence warning claims are probably better issued as section 15 (Equality Act) claims, for discriminatory treatment arising from an employee’s disability. Employees who receive a warning or are dismissed by reason of disability related absence are very likely to be able to demonstrate discriminatory treatment arising from an employee’s disability – meaning that an employer will need to justify the discriminatory effect.