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28 January 2016

Sickness Absence Policies: Making Reasonable Adjustments

In Griffiths v The Secretary of State for Work and Pensions [2015] EWCA Civ 1265, the Court of Appeal has held that the threshold for sanctions under a sickness absence policy can be subject to the duty to make reasonable adjustments, but considered what adjustments would be seen as "reasonable" in the circumstances.

Law

Failure to make a reasonable adjustment amounts to discrimination. The duty is set out in section 20(3) of the Equality Act 2010 (‘EqA’), which provides:

“Where A’s provision, criterion or practice (‘PCP’) puts a disabled person at a substantial disadvantage in comparison with those who are not disabled, A must take such steps as it is reasonable to have to take to avoid the disadvantage.”

Facts

Ms G worked for the Department for Work and Pensions (‘DWP’) for 35 years. Due to what was eventually diagnosed as fibromialgia, she had 62 days absence in one year.

The DWP operated an attendance management policy which kicked in when 8 working days absence occurred in a rolling 12 month period – referred to in the policy as the ‘consideration point’. However, the policy provided that the consideration point could be extended as a reasonable adjustment for disabled employees.

Mrs G received a written warning, with no extension given. She therefore started using annual leave instead of being off sick. She also had a grievance rejected, so brought a claim in the Employment Tribunal for failure to make reasonable adjustments.

Mrs G stated that two adjustments were reasonable and should have been applied:

  1. The 62 day absence should have been disregarded as exceptional absence; and/or
  2. The ‘consideration point’ should have been extended from 8 days to 20 days in Mrs G’s case to account for her disability.

Employment Tribunal & Employment Appeal Tribunal

Both the Employment Tribunal and Employment Appeal Tribunal held that, as the policy treated disabled and non-disabled employees equally, the duty to make reasonable adjustments was not triggered, and that the adjustments sought by the Claimant were not ‘reasonable’ under the statute in any event.

Court of Appeal

The Court of Appeal disagreed that the duty was triggered – ruling that such a policy clearly did put disabled employees at a substantial disadvantage, even though all were treated equally, but agreed that the proposed adjustments were not something an employer could reasonably be expected to take,

The Court of Appeal held that the PCP here was clearly that of requiring employees to have good levels of attendance, and that this clearly would disadvantage disabled employees who are, due to their condition, likely to have higher periods of absence. It found that just because everybody was at risk of the same sanctions did not mean that no adjustment could be required. It was clear that, to compensate for absences that were clearly because of the employee’s disability, a consideration would have to be made.

However, when then considering the adjustments proposed, the Court of Appeal confirmed that the Employment Tribunal had been entitled to conclude that they were not reasonable.

As to the first adjustment – discounting the 62 days absence, the COA pointed to the fact that, whilst of course consideration had to be made for the employee’s condition, where the medical evidence points to further significant absences, an employer does not simply have to discount all such absences – that would not automatically be unreasonable when absences were at such levels.

As to the second adjustment – increasing the consideration point from 8 to 20 days, the COA pointed out that this was a fairly arbitrary increase, and did not have medical evidence to suggest that figure was key for some reason. If further absences of long periods were likely, a short extension would hardly seem to mean the employee misses the trigger, so there was no requirement to adjust the threshold to 20 days. The COA did stress however, that on a case by case basis, if it was clear on the evidence that future absences would be short, such an adjustment may be reasonable.

One further important point in the judgment however, is that the COA stressed even if adjustments may not be reasonable for an employer to make, the protection from discrimination arising from disability under the EqA does mean that employers must still consider the impact of an employee’s disability before taking any further sanctions, especially where an absence management policy reaches potential dismissals.

Comment

This is helpful clarification that, even where an employer’s absence management policy clearly has the same sanction for all employees, you must give consideration to whether any adjustments to thresholds should be made to take account for an employee’s disability.

However, it is also now clear that employers do not simply have to discount all or large periods of absence simply because of a disability – it is something that must be reviewed on the circumstances of each case, and after careful deliberation as to whether short extensions would be appropriate.

A full transcript of the case can be found here: http://www.bailii.org/ew/cases/EWCA/Civ/2015/1265.html

For further information in respect of sickness absence policies, please contact Steeles Law’s employment team.