Disability case decision needs a health warning

warning

Reasonable adjustments and sickness absence policies are the subject of the recent Employment Appeal Tribunal (EAT) decision in Griffiths v Department for Work and Pensions.

Most HR professionals may have assumed before this decision that, seeing as disabled employees are more likely than non-disabled employees to have high levels of sickness absence, the trigger points for disciplinary action in absence management policies should be adjusted for disabled employees in order to avoid discrimination.

This decision does not support this and it is surprising seeing as it is contrary to what was believed by most as being – if not black letter law – then good HR practice. However, HR practitioners should be aware that a wholesale adoption of the principle set out in the decision is likely to put your organisation at risk.

Disability and sickness absence trigger points

Griffiths v Department of Work and Pensions is a case on the reasonable adjustments provisions of the Equality Act 2010. These provisions require an employer to make reasonable adjustments to prevent disabled employees being placed at a substantial disadvantage by any provision, criterion or practice of the employer or any physical feature of the employer’s premises. Whether an employee is, in fact, placed at a substantial disadvantage is judged by comparison with a non-disabled person. Reasonable adjustments is a particularly difficult area of law as in considering claims under the reasonable adjustment provisions, the employment tribunal can substitute its own opinion for that of the employer.

Ms Griffiths was an administrative officer and had worked for the DWP for 35 years. She had been absent from work suffering from what her GP had diagnosed as post viral fatigue and had been away from the workplace for 62 days. On her return to work, an occupational health assessment found her to be suffering from fibromyalgia, which is considered to be a disability within the meaning of the Equality Act 2010.

Griffiths’ absence was dealt with by the Department for Work and Pensions under its attendance policy. The policy provided for an escalating warning process, beginning with a written improvement warning and culminating in action that included dismissal or demotion. The policy also provided that adjustments could be made for disabled employees. Griffiths was issued with a written improvement warning as a result of her absence. She brought a grievance in response, contending that her period of absence should be disregarded and the warning withdrawn and, in future, the number of days of absence before the attendance policy was activated should be increased. The grievance was rejected and Ms Griffiths brought an employment tribunal claim.

Before the employment tribunal, Griffiths argued that the respondent’s attendance policy placed her at a substantial disadvantage, seeing as she was being subject to disciplinary action for her disability-related absence and, to avoid further action, she had had to take annual leave to cover further disability-related absences. Accordingly, she argued, the DWP should have made adjustments. However a majority of the tribunal disagreed. As the policy applied to all staff, disabled and non-disabled employees alike were subject to the same sanctions in the event of sickness absence. Griffiths appealed.

Disabled employee suffered no substantial disadvantage

The EAT agreed with the tribunal finding that Griffiths had suffered no substantial disadvantage. It compared her circumstances with those of a non-disabled person absent from work for the same period. Such a person would be treated in an identical manner and therefore she could not have experienced any disadvantage. Moreover, the EAT found that the adjustments Griffiths was seeking were not reasonable in any event. They would entail continually extending, by an indefinite amount, the period before which disciplinary action could be taken in respect of absence. The purpose of disability legislation was to enable a disabled employee to participate in the workplace and, as this would not be achieved by the proposed adjustment, it fell outside the scope of the statute.

This decision will surprise most HR advisers. The weight of opinion up until now was that expressed by the minority of the tribunal: seeing as disabled employees are more likely than non-disabled employees to have high levels of sickness absence, the trigger points for disciplinary action in absence management policies should be adjusted for disabled employees in order to avoid discrimination. Failure to make adjustments to the policy would make it more likely that a disabled person would be subject to disciplinary action and place them at greater risk of losing their jobs. Moreover, the decision is inconsistent with the reasoning in an earlier EAT case in which it was implied that disability-related absence should be discounted for the purposes of absence management procedures.

What you should do

The upshot of the case is that, on the face of it, employers need to no longer worry about adjusting the trigger points for disciplinary action under absence management policies for disabled employees. However, it would be a brave employer who followed an absence management policy through from first warning to dismissal without any adjustments at all for disability related sickness. Such a process would be open to challenge on the basis that it constituted discrimination arising from a disability, seeing as the dismissal would be unfavourable treatment arising in consequence of disability related absence. Accordingly, the dismissal would need to be objectively justified. Employers should therefore be wary of relying too heavily on this case.

About Louise Mason

Louise Mason is a senior associate at Hogan Lovells.
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