Court of Appeal clarifies position in relation to disability and sickness absence

An employer will typically have a sickness absence policy that sets out trigger points at which it might take various steps to manage both a disabled and a non-disabled employee’s sickness absence. The typical pushback from a disabled employee is that ‘normal’ procedures should not apply to them and a reasonable adjustment should be made, for example, not issuing a disciplinary warning for sickness absence.

A recent Court of Appeal case of Griffiths v The Secretary of State for Work and Pensions that has been to the Court of Appeal has clarified the duties of the employer in such a case.

The Court of Appeal emphasised that the duty to make reasonable adjustments goes beyond equal treatment and requires employers to take positive steps – this is something that we have known about since Lady Justice Hale’s comments in Archibald v Fife many years ago. You may recall that she emphasised in that case that the duty to make reasonable adjustments necessarily entails an element of more favourable treatment of the disabled person in order to level the playing field.

Thus it is entirely possible that an absence management policy can place a disabled employee at a substantial disadvantage and the duty to make reasonable adjustments may well be engaged. Failure to make that reasonable adjustment can then amount to discrimination.

In this case, Ms Griffiths was an Administrative Officer who had worked for the Department for Work & Pensions (DWP) for 35 years. She had been absent from work for 62 days suffering from post viral fatigue. On her return to work an occupational health assessment was conducted and she was found to be suffering from fibromyalgia. DWP operated an attendance management policy which provided for an escalating warning process beginning with a written improvement and culminating in action that could include dismissal and demotion. The policy was normally activated when an employee reached what was referred to in the policy as a ‘consideration point’ of 8 working days absence in any rolling 12 month period.  The policy provided that the consideration point could be extended as a reasonable adjustment for disabled employees. Once the employee reached the consideration point she was issued with a written warning with no extension being granted in view of her disability. In order to avoid further sanctions under the policy she began using her annual leave to cover ongoing sickness absence and brought a grievance complaining that DWP had failed in its duty to make reasonable adjustments. Her grievance was rejected so she brought a claim of disability discrimination by way of failure to make reasonable adjustments contending DWP should have treated the 62 day absence as exceptional and disregarded it such that the written warning would never have been issued and that the consideration point should have been extended by an additional 12 days so that no disciplinary sanction should be considered until after 20 days absence in any 12 month period.

Given that the Court of Appeal’s view was that the duty to make reasonable adjustments was engaged, the question then became whether or not the adjustments Ms Griffiths was seeking were reasonable or not. The Court of Appeal found that a Tribunal was entitled to conclude that neither of the adjustments were reasonable in relation to the revocation of the warning the Tribunal view had been that the sickness absence was not a ‘one-off’ matter – on the medical evidence further periods of potentially lengthy absence were likely to arise. In this context the Tribunal had concluded that it was not reasonable to expect an employer to disregard an extended period of absence.

In relation to the extension of the consideration point for future periods of absence, there was no obvious period by which the consideration point should be extended, given that future absences were likely to be long, they felt a relatively short extension of the consideration point would be unlikely to remove any disadvantage that the worker was at. Thus in the circumstances of this case the Tribunal had been entitled to find that the adjustment sought was not a reasonable one for the DWP to make.

What is interesting is that the Court of Appeal commented that in different circumstances where periods of absence may have been short, it may be that an adjustment to the consideration point would be reasonable.

So where does this leave us? The case is helpful in that it clarifies that trigger points in disciplinary policies and sickness absence procedures are subject to the duty to make reasonable adjustments. It tells us that in any given case we have to apply our minds to whether or not an adjustment should be made.

It also shows us that, in any individual situation, it will be necessary to consider all the circumstances including the particular disability and how it is likely to manifest in sickness absence, that is, you can’t have a blanket approach.

The other key issue that employers need to bear in mind at all times when dealing with a disability is that they may not just face claims in relation to a failure to make a reasonable adjustment. The Court of Appeal gave strong hints in this case that it would have been better brought as a claim under Section 15 of the Equality Act which is the section that deals with claims of discrimination arising from a disability. There has recently been a string of cases under that Section which show there is a relatively low hurdle required to satisfy Section 15 in e.g. Land Registry v Houghton and Hall v Chief Constable of West Yorkshire Police. It is therefore important to remember that under Section 15 to defend a claim you need to be able to show that the treatment you have dished out to the employee is a proportionate means of achieving a legitimate aim or, putting it another way, there was no less discriminatory route that you could have taken.

Another recent example of Section 15 being used was the case of Pnaiser v NHS England and Coventry City Council where the claim of unlawful disability discrimination pursuant to Section 15 arose from an unfavourable oral reference given by a manager in relation to the suitability for a role due to disability related sickness absence. The unfavourable oral reference was given in consequence of sickness absence. That sickness absence arose from disability and therefore Section 15 is engaged. An employer would have to show that giving a negative reference was a proportionate means of achieving a legitimate aim. They could not do this so the case has been remitted to the Tribunal for remedy to be assessed.