Court of Appeal: disregarding disabled employee’s absence trigger was not reasonable adjustment

It was not a reasonable adjustment for an employer to disregard absence triggers for a disabled employee in an attendance procedure, but a claim for discrimination arising from disability may have succeeded, according to the Court of Appeal in Griffiths v Secretary of State for Work and Pensions.

Ms Griffiths, a Department for Work and Pensions (DWP) employee, was absent for 62 consecutive days because of her disability.

Although she had initially used annual leave, she was later issued with a “written improvement warning” under the DWP’s attendance policy.

The trigger point for a warning under the attendance policy was eight days’ absence in any rolling 12-month period.

Ms Griffiths brought a claim for disability discrimination. She argued that, as a reasonable adjustment, her 62-day absence period should have been disregarded and the number of days before a warning issued increased.

The employment tribunal held that the DWP had not breached its duty to make reasonable adjustments, on the basis that she did not suffer a substantial disadvantage compared to employees who are not disabled.

In Griffiths v Secretary of State for Work and Pensions, the Employment Appeal Tribunal upheld the tribunal decision.

In its judgment of 10 December 2015, the Court of Appeal dismissed the appeal. It held that the employment tribunal was entitled to find that the proposed adjustments were not steps that the DWP could reasonably be expected to take.

In its judgment, the Court of Appeal strongly advised disabled claimants challenging a disciplinary sanction, whether a dismissal or other sanction such as a warning, for poor attendance to bring a claim for discrimination arising from disability under s.15 of the Equality Act 2010.

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The Court of Appeal said that the circumstances of cases such as this “can be quite difficult to analyse in terms of the reasonable adjustments duty”.

Read more details of the case and its implications for employers…