Mrs Griffiths, an administrative officer employed by the Department of Work and Pensions (DWP) since 20 September 1976 was diagnosed with post-viral fatigue and fibromyalgia in 2009. Owing to sickness absences, she was given an oral warning in line with the DWP’s attendance management policy on 23 February 2013. She did not complain about this oral warning but the written warning that was issued to her on 9 May 2011, following a 66 day absence. Sixty-two days of that absence related to her diagnosed conditions.
With the assistance of her trade union representative, Mrs Griffiths raised a grievance requesting adjustments to the policy and asked for the warning to be withdrawn. She requested a referral to occupational health to determine if she was disabled. Her grievance stated that her disability gave rise to the lengthy absence resulting in her written warning and that alterations to the policy to allow her more time off for disability-related absences before disciplinary action was taken should be permitted. The DWP dismissed her grievance and appeal.
The DWP’s attendance management policy set out that ‘consideration will be given to formal action being taken against an employee where his or her absences reach an unsatisfactory level, known as “the consideration point”’. It defined the consideration point as eight working days in any rolling 12-month period, but stated that it ‘may be increased as a reasonable adjustment if you are disabled’. The DWP did not make any adjustments at that time as it did not agree that Mrs Griffiths was disabled under the Equality Act 2010 (EqA). However, it did later concede in litigation that she was disabled.
Mrs Griffiths bought a claim for failure to make reasonable adjustments in the employment tribunal. She had proposed two adjustments. It is worth noting that there is no legal obligation on an employee to propose reasonable adjustments, it is however considered good practice for employers to ask for suggestions from the employee as they may be more attune to the issues they are facing. If an employee does make suggestions, the question for the employer is whether those adjustments would help overcome the substantial disadvantage and whether they are reasonable.
The tribunal confined itself to the two adjustments that Mrs Griffiths had requested but it rejected her claim. It held that no failure to make reasonable adjustments had occurred and that the DWP could not be expected to make the adjustments she proposed.
Mrs Griffiths appealed unsuccessfully. The Employment Appeal Tribunal (EAT) agreed with the tribunal’s two conclusions. Mrs Griffiths appealed to the Court of Appeal (CoA) challenging those conclusions.
The Court of Appeal considered four questions on appeal:
- was the duty to make reasonable adjustments engaged?
- was the EAT right to conclude that the proposed amendments were not ‘steps’ within s20(3) Eq Act?
- if there was a duty and the proposed amendments were ‘steps’, did the majority of the tribunal misunderstand and misinterpret the reasonable adjustments sought?
- was the EAT entitled to find that it was not reasonable to expect the employer to make the adjustments?
Court of Appeal
Mrs Griffiths argued that the delay in receiving her diagnosis and putting a treatment plan in place had resulted in her lengthy absence and that this should not have been counted under the policy. The DWP had not revisited the consideration point. The appeal was based on the application of the policy to her and not the policy itself which provided for adjustment based on conditions including where the employee is disabled, the absence is disability-related and it is reasonable to extend the consideration point. She argued that the 62-day absence should be disregarded.
The DWP argued, in the employment tribunal, that there was no failure to make reasonable adjustments as the policy was equally applicable to disabled and non-disabled persons. It argued that the worry and stress of losing the job was a concern for both disabled and non-disabled employees who had been off sick. It considered that Mrs Griffiths was in a neutral position. The EAT case of Royal Bank of Scotland v Ashton  ICR 632. was relied upon in support of the DWP’s proposition. That case related to an employee who suffered repetitive and debilitating migraines resulting in frequent, intermittent absences from work. Such absences triggered a policy giving rise to disciplinary action. The trigger points in the sickness absence policy had been relaxed for that employee as a disabled person. No such relaxation was available to non-disabled employees. There was no failure to make reasonable adjustments.
The DWP argued, in the alternative, that the adjustments requested were not reasonable. The tribunal agreed. The removal of the 66-day absence together with additional time for further absences would prevent the continuation point arising. The absence was not exceptional and if permitted, any extension would likely be a barrier to her remaining in work. This was not the intention of the duty which is to facilitate a return to work.
The DWP argued successfully in the EAT that the adjustments sought did not constitute ‘steps’ within the meaning of s.20(3). As a result, it was not necessary to consider if the adjustments were in fact reasonable. The CoA did not agree. It saw no reason to narrow the concept of what constituted a ‘step’ under EqA s.20(3).
Mrs Griffiths unsuccessfully argued that the tribunal had misunderstood the nature of the adjustments she was proposing.
It was accepted that the DWP’s policy in issue was ‘a requirement to attend work at a certain level in order to avoid receiving warnings and possible dismissal’. The DWP had sought to argue that it was a general policy and that if that were the case the fact that disabled employees were permitted special allowances meant that there was no substantial disadvantage. The provision that an employee remains in work is likely to substantially disadvantage a disabled employee who may require greater time off as a result of its disability. The risk of a dismissal is greater for a disabled employee whose disability results in more frequent and possibly longer absences. The risk is therefore likely to be greater for those who are disabled.
The CoA found that if the disability leads to disability-related absences, which would not be the case with the non-disabled employee, then there is a substantial disadvantage. The fact that there is a degree of disadvantage to the non-disabled employee is irrelevant. The disadvantage on the disabled employee must be more than minor or trivial. There have also been other case authorities on this issue. In O’Hanlon v Revenue and Customs Commissions  ICR 1359, a case involving sick pay to a disabled employee, the CoA found that the duty is not satisfied simply by treating employees the same. The employer argued that it treated all employees the same when paying sick pay and no disadvantage arose. The CoA rejected this argument and highlighted the fact that more favourable treatment should be considered in relation to disabled employees. In the current case, the CoA found that both the employment tribunal and the EAT had erred in finding that the s.20 duty did not apply and upheld Griffiths’ appeal on this point. The question then turned to the reasonableness of those adjustments.
As to reasonableness of the two proposed adjustments, the CoA was required to consider if the tribunal’s decision that the adjustments were not reasonable was sustainable based on the evidence. The 66-day absence was some eight-times greater than the permitted absence before the policy is triggered, and given Occupational Health’s opinion that further potentially lengthy sickness absence was likely, the CoA considered that it was unreasonable to write it off. The second adjustment did not give rise to a clear indication as to when the consideration point should be extended and this could have been indefinite with a lesser chance of a return to work.
The CoA noted that the employer still has a duty under s.15 not to subject an employee to ‘discrimination arising from disability’. The treatment of Mrs Griffiths in subjecting her to a warning as a result of her disability-related absence may have been sufficient to make out a s.15 claim. However, s.20 is limited to the imposition of adjustments only and not to the treatment that the employee has suffered and whilst the duty did arise, Mrs Griffiths’ appeal was rejected on the basis that the adjustments were not reasonable in the circumstances of the case.
It is worth noting that whilst the appeal was unsuccessful, the CoA has stated that it can be a reasonable adjustment for an employer to adjust its attendance policy triggers where an employee’s disability does make it more likely they will take more sickness absence. This will not however apply to all disability-related absences and will be fact specific. Further, it stated that the application of an attendance management policy is capable of discriminating against an individual under EqA s.15, if the employer cannot show that its policy was justifiable as a proportionate means of achieving a legitimate aim. Had Mrs Griffiths pleaded EqA s.15 she may have been successful in that claim as she may be able to demonstrate that she was treated unfavourably.
Unfortunately, absence management policies are generally considered to be disciplinary in nature but it is open to an employer to lawfully make a determination as to the viability of accommodating an employee’s absences. An employee’s sickness absence record is one element to take into account when deciding whether or not to dismiss.
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