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13 April 2016

Reasonable adjustments for disability-related absence

In Griffiths v Secretary of State for Work and Pensions, the Court of Appeal has given guidance on an employer's duty to make reasonable adjustments for a disabled worker in respect of disability-related absence.

Ms Griffiths worked for the Department for Work and Pensions (DWP) as an administrative officer. She suffered from post-viral fatigue syndrome and fibromyalgia, which it was agreed amounted to a disability. Due to her condition, she had been absent from work for a period of 62 days. The DWP had an attendance management policy for dealing with absenteeism. This did allow for adjusting the point at which warnings were triggered in the case of disabled employees, but the DWP declined to do so in Ms Griffiths' case and she was issued with a written improvement warning and told that she could face disciplinary sanctions.

She sought to persuade her employer that the period of absence should not be counted against her and that the written warning should be withdrawn. She also argued that the policy should be modified to enable her to have longer periods of sick leave in the future before she would face the threat of disciplinary action.

Following a grievance procedure, however, the DWP refused to comply with either of those requests. Ms Griffiths' subsequent claim alleging a breach of the duty to make reasonable adjustments under Section 20 of the Equality Act 2010 was rejected by the Employment Tribunal (ET), and subsequently by the Employment Appeal Tribunal (EAT), on the basis that no duty to make adjustments had arisen as, in light of the decision in Royal Bank of Scotland v Ashton, the provision, criterion or practice of applying the attendance management policy applied to all staff and did not put disabled employees at a substantial disadvantage. Furthermore, the DWP could not reasonably have been expected to make either of the adjustments sought.

In ruling on her challenge to the EAT's decision, the Court of Appeal found that both tribunals had erred in finding that the duty to make reasonable adjustments was not engaged simply because the absenteeism policy applied to all employees. There was clear evidence that the terms of the policy had placed Ms Griffiths at a substantial disadvantage.

Dismissing her appeal, however, the Court found that employers are entitled to say, after a pattern of illness absence, that they should not be expected to have to accommodate an employee's absences any longer. Although Ms Griffiths was in no sense culpable for her absence, the DWP's refusal to make the adjustments requested was, in the circumstances, reasonable.

In sounding a warning note to employers, however, the Court noted that the right to reasonable adjustments is just one of the protections afforded to disabled workers. Those who take disproportionate decisions to dismiss employees for disability-related absences could still be held liable for discrimination or unfair dismissal.

Contact Chris Brazier for advice on any employment law matter. Call 01753 279029 or email employmentlaw@bpcollins.co.uk.

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