Have you ever had an employee argue that your ordinary sickness absence management policy shouldn’t apply to them because of their disability? For example, it might be arguing that your trigger points for action shouldn’t kick in or that they shouldn’t receive a warning in relation to their attendance yet.
The Employment Appeal Tribunal (EAT) was asked to rule on this issue in a case called Griffiths v DWP. Griffiths had post-viral syndrome and fibromyalgia making her suffer from pain and fatigued. The employer’s attendance policy triggered formal action after 8 days absence in a rolling 12 month period. They had built some room for manoeuvre in saying that the period ‘may’ be increased as a reasonable adjustment for a disability.
G triggered a written warning by being off for 62 days. She argued that her illness should be disregarded and the warning withdrawn. She also argued she should have a greater ‘allowance’ of days off before the usual attendance policy would be triggered in the future.
The tribunal ruled in favour of the employer, finding by a majority that as the sickness policy applied to all, there was no question of the claimant being put at a substantial disadvantage by the policy compared to employees without a disability. They also felt that the adjustment sought would not be reasonable in any event because it would create a buffer which would prevent the trigger from being reached. One of the panel felt that a disabled worker was more likely to reach the 8 day trigger point.
The EAT agreed with the majority which will be a relief to employers worried about the extent to which to flex on their usual policies and feeling they will be criticised for tackling absence problems. This fits in with previous case law around the public policy behind the legislation: it is there to protect the disabled employee to return and stay in work, not to encourage absence.