The Court of Appeal has dismissed a claim that an employer failed in its duty to make reasonable adjustments for a disabled member of staff by not extending the trigger point for taking disciplinary action in respect of that employee’s absence.
In Griffiths v The Secretary of State for Work and Pensions, the trigger or “consideration point” for disciplinary action for absence was 8 working days in any rolling 12 month period. There was discretion for the Department for Work and Pensions (DWP) to extend the consideration point for disabled employees. Ms Griffiths was absent for 62 days due to post-viral fatigue. An occupational health assessment then diagnosed fibromyalgia.
Mrs Griffiths was issued with a written warning in respect of her absence in line with the policy. The DWP did not exercise its discretion in this case. Mrs Griffiths argued that she had been discriminated against on the grounds that the DWP had failed to make reasonable adjustments and proposed that they ought to have discounted the 62 day absence as exceptional and not issued a written warning and that the consideration point should have been extended to 20 days instead of 8.
The Employment Tribunal and the Employment Appeal Tribunal (EAT) found that the duty to make reasonable adjustments did not apply. For the duty to make reasonable adjustments to arise, an employer’s Provision, Criterion or Practice (PCP) must put the disabled person at a substantial disadvantage in comparison with those who are not disabled and the employer must take reasonable steps to avoid that disadvantage. In this case, the EAT took the view that the attendance policy was the PCP and, as it was applied equally to all employees, Mrs Griffiths had been treated in the same way as a non-disabled person who had the same level of absence and so there was no disadvantage.
The Court of Appeal disagreed on that point. It said that the correct PCP was not the sickness absence policy itself but the requirement to maintain a certain level of attendance and, on that basis, there was a requirement which would substantially disadvantage disabled employees if increased absence was a likely consequence of their disability. Consequently the obligation to make any reasonable adjustments to the policy was triggered.
However, having established that, the Court of Appeal went on to find that the suggested adjustments were not reasonable. Discounting the absence was not reasonable in the circumstances where further periods of absence were likely, although to do so might be reasonable where the absence, although lengthy, was a one off. Similarly, extending the trigger for disciplinary action was not reasonable as there was no logical period to extend it to and what might appear a reasonable extension would be likely to have no impact where future absences were, as in this case, likely to be lengthy.
Employers should consider in each case whether they need to make reasonable adjustments to their attendance policies and whether there are sensible adjustments which can be made which will serve to mitigate against the detriment suffered by the member of staff.