29 Jan 2016

The Court of Appeal has given important guidance on how the duty to make reasonable adjustments for disabled workers applies to sickness absence policies. In this particular case, the employer was right not to increase the level of absence required to trigger a formal disciplinary process or disregard periods of disability-related absence.

Where an employer knows (or ought reasonably to know) that a worker is disabled, it is required to comply with the duty to make reasonable adjustments. This means that the employer is obliged to take such steps as are reasonable to ‘level the playing field’, by removing any substantial disadvantage a disabled employee may suffer when compared to those who are not disabled.

In the context of sickness absence policies, managing disabled workers who may (quite understandably) take prolonged or frequent periods of sickness absence can cause significant business issues for employers. To what extent should a disabled worker be allowed additional leeway before formal measures are put in place to improve attendance – and does the duty to make reasonable adjustments apply at all?

In Griffiths v. The Secretary of State for Work and Pensions, Mrs Griffiths was an administrative officer who had worked for the DWP for 35 years. In 2009, she began to experience symptoms which were later diagnosed as post-viral fatigue and fibromyalgia. It was accepted that this constituted a disability.

The DWP’s attendance management policy set a trigger point of 8 days’ sickness in any rolling 12-month period, following which formal improvement action would be taken. The policy included flexibility to increase this trigger point as a potential reasonable adjustment for disabled employees. Mrs Griffiths was absent from work for 66 days, 62 of which were attributable to her disability. She was issued with a formal written improvement warning, in accordance with the policy.

She brought a claim for disability discrimination, based on the DWP’s alleged failure to make reasonable adjustments. In particular, she argued that her disability-related absence should be discounted under the policy, meaning that the warning would be withdrawn. She also said that for future absences, she should be allowed 20 days’ sickness absence before a formal process was triggered.

Both the Employment Tribunal and the Employment Appeal Tribunal rejected her claim. They concluded that Mrs Griffiths was subject to the same attendance management rules as everyone else (and therefore she was not placed at a substantial disadvantage when compared to non-disabled employees), so the duty did not arise. Further, the adjustments she proposed were not reasonable. Mrs Griffiths appealed to the Court of Appeal.

Court of Appeal decision

The Court of Appeal determined that duty to make reasonable adjustments was engaged here. Although the policy applied equally to everyone, disabled employees could be placed at a substantial disadvantage if they suffered more frequent or longer periods of absence due to their disability, than would be the case for non-disabled employees. In other words, a disabled employee may be more likely to reach the level of absence that would trigger a formal warning (and therefore the policy bites harder on them).

However, in Mrs Griffiths’ particular circumstances, the Court of Appeal concluded that the proposed adjustments were not reasonable. It was open to the Employment Tribunal to conclude that it would not be reasonable simply to disregard the 62 days of disability-related absence and revoke the written warning. This was nearly eight times longer than the permitted level of absence under the policy and, according to the medical evidence, further periods of potential lengthy absence would be likely to arise. In that context, a relatively short extension to 20 days before a warning is triggered would be of limited value.

In particular, the Court of Appeal recognised that: ‘it is unfortunate that absence policies often use the language of warnings and sanctions which makes them sound disciplinary in nature… But an employer is entitled to say, after a pattern of illness absence, that he should not be expected to accommodate the employee’s absences any longer. There is nothing unreasonable… in the employer being entitled to have regard to the whole of the employee’s absence record when making that decision’.

Comment

The court was undoubtedly right to say that the duty of reasonable adjustments does apply when considering whether a disabled employee should be subject to improvement measures under a sickness absence policy. To argue otherwise would, in my view, defeat its entire purpose.

In many cases, it will still be appropriate to disregard disability-related absence (or at least increase the threshold before a warning is issued). Much will depend on the medical evidence and other issues relating to reasonableness – for example, the practicability of the step, whether it will be effective in preventing the disadvantage and the extent of the disruption caused to the employer’s business. Helpfully for employers, the Court of Appeal acknowledged that there will come a time when enough is enough and, at that stage, it may be appropriate to look at the entire pattern of absence.

Although the reasonable adjustments duty may result in a relaxation of rules relating to absence management, it does not require the employer to adopt a more generous approach to sick pay (for example, by extending enhanced sick pay provisions beyond what is offered to everyone else). Its purpose is to promote measures which enable disabled employees to play a full part in the workplace, not to treat them as objects of charity.

The Court of Appeal was also right to say that references to ‘warnings’ and ‘disciplinary action’ in sickness absence policies are often unhelpful – clearly, absence that is genuinely related to the disability is not the employee’s fault. Perhaps some alternative terminology might be warranted for genuine ill-health cases – for example, referring to a ‘Stage 1 review’ rather than a ‘first written warning’, or a ‘Stage 2 review’ rather than a ‘final written warning’. The point is to make clear that the employer will take active steps to support the employee in improving attendance within a structured process, but ultimately there is a cut-off point beyond which a capability dismissal will be considered.