Duty to consider reasonable adjustments applies to sickness absence warnings

Griffiths v The Secretary of State for Work and Pensions | Court of Appeal | 2015

Many employers have policies and procedures to help manage sickness absences. In most cases the policy will set out the trigger points for when improvement notices or disciplinary warnings will be issued to an employee who has failed to maintain an acceptable level of attendance at work. These can escalate to a dismissal if attendance does not improve.

Here, the claimant was an administrative officer who had worked for the Department for Work and Pensions for 35 years. However, her health had caused her to suffer poor attendance which had triggered a written warning under the DWP’s ill health management policy. The claimant raised a grievance complaining that the DWP had failed in its duty to make reasonable adjustments. In particular the claimant argued that her absences due to her disability should be ignored and the trigger point should have been extended by an additional 12 days so that no disciplinary warning could be issued until after 20 days’ absence, instead of the normal 8 days.

After her grievance was not upheld, the claimant brought a claim in the employment tribunal and lost. Her appeal to the EAT was also unsuccessful. This was because the tribunal and EAT concluded that, as the policy applied to all employees in the same way, neither disabled nor non-disabled employees could be disadvantaged compared to the other. Therefore the claimant could not show she had been put to a “substantial disadvantage” so that the duty to make reasonable adjustments was engaged. It was also held that the reasonable adjustments sought by the claimant were not reasonable in any event given her length of absence and because it was unlikely her health would let her improve her attendance at work.

The Court of Appeal took a different view in relation to the issue of reasonable adjustments; concluding that even though the policy applied equally to all employees regardless if they were disabled, both the tribunal and EAT had misunderstood when and how the duty to consider making reasonable adjustments arose. The duty arises once there is evidence that the arrangements place a disabled employee at a substantial disadvantage because of that person’s disability. This will occur when a policy requires (as most do) a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions. This requirement will put a disabled employee at a substantial disadvantage when his or her disability increases the likelihood of absence from work.

The Court of Appeal, however, agreed with the tribunal and EAT that, although the duty to consider making reasonable adjustments was engaged, the DWP was not under any duty to make any; the adjustments requested by the claimant were not reasonable given the facts of her case.

This is yet another case that employers need to heed to ensure they do not overlook best practice when handling long term absence cases. The team at Quantrills are always available to discuss any sickness absence issue so that you can minimise the risk of your next absence management case ending up in the employment tribunal.