In Griffiths v The Secretary of State for Work and Pensions, the Court of Appeal has given guidance to employers regarding the duty to make reasonable adjustments when considering whether to issue a disciplinary warning for sickness following a period of absence of a disabled employee.
Ms Griffiths worked for the Department of Work and Pensions (DWP) as an administrative officer. In early 2011, she suffered from post-viral fatigue and had a continuous period of 62 days of sickness absence.
The DWP had an attendance management policy (the Policy). This stated that after eight working days’ absence in any 12 month period, an employee would receive a written warning and further absences could result in dismissal or demotion. The Policy did allow for a discretionary extension to the eight-day rule where a reasonable adjustment was needed for a disabled employee. However, the DWP did not exercise their discretion to make an adjustment and Ms Griffiths received a written warning for her absence.
Ms Griffiths returned to work in May 2011 but continued to have sickness absences and began taking annual leave to avoid further disciplinary action. In June 2011, she brought a grievance, arguing that the DWP had a duty to make reasonable adjustments. First, she said that her 62-day absence should be disregarded and therefore that her written warning should be revoked. Second, she said that the absence period of eight days under the Policy should be extended by 12 days so that no disciplinary action could be taken until she reached 20 days’ absence.
The grievance was rejected by DWP and no adjustments were made.
In September 2011, an occupational health report confirmed that Ms Griffiths suffered from fibromyalgia and she was therefore a disabled person under the Equality Act 2010.
Ms Griffiths brought a claim for disability discrimination arising from a failure to make reasonable adjustments.
Both the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) held that the duty to make reasonable adjustments was not engaged because the Policy did not put Ms Griffiths at a substantial disadvantage compared to a non-disabled employee: the Policy applied equally to all so it could not be said that Ms Griffiths was at a disadvantage in its application.
Ms Griffiths appealed to the Court of Appeal (CA).
The CA found that the duty to make reasonable adjustments was engaged. It held that Ms Griffiths’ disability lead to a level of absence which a non-disabled employee was unlikely to have. However, the CA went on to decide that the adjustments proposed by Ms Griffiths had not been reasonable.
According to the CA, an employer should be entitled not to have to accommodate an employee’s absences after a significant pattern of absences, subject, of course, to the employer acting reasonably. The CA held the view that there is nothing unreasonable in an employer being entitled to have regard to the whole of the employee’s absence record when making such a decision, although the fact that the absence is disability-related is highly relevant to the question of whether disciplinary action is appropriate. Given that Ms Griffiths’ extended period of absence was not a one-off period and further periods of absence were expected, the CA agreed with the ET’s conclusion that it was not reasonable to expect the DWP to ignore the absence and it was entitled to issue the written warning.
In respect of the extension of the eight-day rule under the Policy, the CA agreed with the ET that an extension to 12 days was unlikely to remove Ms Griffith’s disadvantage given that further, long absences were anticipated and was therefore entitled to find that refusing such an adjustment was reasonable. However, it did recognise that in circumstances where further periods of absence were expected to be short, such an adjustment might be reasonable.
While employers now have confirmation that applying an attendance policy to all employees will not automatically place disabled members of staff at a ‘substantial disadvantage’, there is considerable uncertainty about what will be 'reasonable' in any given situation. The Courts have already held that an employee must put forward the adjustments they consider reasonable and, in this case, the adjustments suggested by the employee were found not to be sufficient to have enabled her to return to work.
It is worth noting that Ms Griffiths did not bring a claim for discrimination ‘arising from a disability’. This type of discrimination occurs when an employer treats an employee unfavourably because of something arising in consequence of the employee’s disability, and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim. There is a relatively low hurdle required to show this form of discrimination and so, although Ms Griffiths’ reasonable adjustments claim did not succeed, she might have had a successful claim for discrimination arising from her disability. Employers need to be aware that they could face a claim of this kind even if they can argue that there are no reasonable adjustments to be made to an absence policy of the kind applied in this case.