21st December 2015

Reasonable Adjustments and Sickness Absence

The Court of Appeal yesterday handed down an important Judgment in the interpretation of the reasonable adjustment legislation, in particular in relation to how employers should operate sickness absence policies.

Our readers will be aware that the duty to make reasonable adjustments arises where a “provision, criteria or practice” (PCP) places disabled employees at a substantial disadvantage when compared to non-disabled employees.

In the Case of Griffiths v Secretary of State for Work and Pensions the Claimant suffered from a condition similar to ME and was given a formal warning under the sickness absence policy following a 66 day absence, most of which related to her disability.

The “PCP” in this case was held to be a requirement that the employee “must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions”.

The Claimant argued that the Respondent failed to make reasonable adjustments by refusing to:

• discount disability related absences when issuing the sanction; and
• modify the policy to take into account long periods of disability related absence in the future.

The Employment Tribunal and the Employment Appeal Tribunal (EAT), following the recent (bizarre) EAT decision in the case of Royal Bank of Scotland v Ashton, both held that the duty to make reasonable adjustments did not arise because, in essence, a non-disabled employee would have been treated in the same way. Ergo the Claimant did not suffer a disadvantage when compared to a non-disabled employee. They also both concluded that the adjustments requested were not reasonable in the circumstances.

The Court of Appeal overruled the EAT in relation to when the duty to make reasonable adjustments arises, holding that it was not correct to apply a comparative exercise in the strict sense as applied in Ashton. Rather, it was clear in this case that the Claimant was placed at a substantial disadvantage because her disability made her more likely to be absent from work than a non-disabled employee, and was, in turn, more likely to be at risk of dismissal.

Unfortunately for Mrs Griffiths however, the Court of Appeal went on to conclude that the adjustments sought would not have been reasonable in the circumstances and her appeal was ultimately dismissed.

Comment

Whilst the Claimant’s appeal was not successful, this Judgment has fixed the problem created by the Ashton case, and confirms that the duty to make reasonable adjustments can arise when it comes to triggers for warnings in sickness absence policies. All employers should carefully consider discounting disability related absences when managing sickness absence, although how much disability related absence should be discounted will depend on the circumstances of the case and the needs of the employer.

If you would like to discuss how this case affects you please do not hesitate to contact one of the team at info@lawbydesign.co.uk or telephone 0161 437 0013