Employers should consider the duty to make reasonable adjustments for disabled employees when issuing disciplinary warnings and managing sickness absence. This was made clear by the Court of Appeal in its judgment in the recent case of Griffiths v Secretary of State for Work and Pensions which considered the relationship between reasonable adjustments and the application of absence management policies.
Ms Griffiths was employed by the Secretary of State for Work and Pensions (SoS) as an administrative assistant. She had a number of periods of absence from work which were mainly due to a disability. The SoS operated an attendance management policy (the Policy) which provided that formal action would be taken against an employee where absences from work exceeded 8 days in any rolling period of 12 months. In May 2012, Ms Griffiths returned to work from a continuous period of absence lasting 62 days and received a written improvement warning pursuant to the Policy. After pursuing an unsuccessful grievance, Ms Griffiths presented a complaint to the Employment Tribunal in which she argued that two reasonable adjustments should have been made for her:
1. The period of disability related absence which led to the issue of the written improvement warning should be disregarded; and
2. The Policy should be amended so that her sickness allowance, i.e. the point at which action is taken under the Policy, is increased from 8 days to 20 days.
Her employer argued that the duty to make reasonable adjustments had not been triggered. They contended that the application of the Policy applied to both Ms Griffiths and non-disabled employees in equal measure and therefore she had not been placed at a substantial disadvantage.
The SoS also argued that the adjustments were not reasonable. The Tribunal and the Employment Appeal Tribunal agreed.
The Court of Appeal
The Court of Appeal held that although both a disabled and non-disabled employee may be subjected to the same disadvantage when absent for the same period of time, this does not eliminate the disadvantage suffered by the disabled employee. It stated that Ms Griffiths was placed at a substantial disadvantage by the application of the Policy because she was more likely to be absent owing to her disability, hence she suffered a substantial disadvantage for reasons relating to a disability.
Although the Court of Appeal overturned the Tribunal’s conclusions on these two important issues of principle, it upheld the Tribunal’s alternative finding that, on the particular facts of the case, the adjustments that Ms Griffiths had proposed were not reasonable.
What this means for employers
Practically, this ruling will impact all employers when considering their duty to make reasonable adjustments for disabled employees. In any case where a disabled person has a disability related absence which triggers an absence management policy, the duty to make reasonable adjustments will normally be engaged. This does not automatically mean that employers are under a duty to amend such policies in favour of disabled employees, however it should be considered.
The judgment also came with a warning to employers that the positive duty to make reasonable adjustments is not the only protection afforded to disabled employees. Employers should be mindful of dismissing or imposing any other sanction on a disabled employee in the same way as it could with respect to a non-disabled employee, to avoid claims pursuant to section 15 of the Equality Act, for discriminatory treatment arising from an employee’s disability.
A number of Tribunal claims were stayed pending the decision in Griffiths and we shall wait with anticipation to see how the Tribunal interprets this decision.