Yesterday, the Court of Appeal handed down judgement in Griffiths v Secretary of State for Work and Pensions, a case which considered the employer’s duty to make reasonable adjustments for a disabled employee and whether that duty applied to an attendance management policy.
G worked for the Department for Work and Pensions (DWP). She was given a written warning under the DWP’s attendance policy after two short spells of disability-related absence followed by a long spell of non-disability related absence. G lodged a grievance with her employer about the fairness of being issued with that warning, seeking two reasonable adjustments:
- First, that her disability-related absence be disregarded for the purposes of the attendance policy and the warning she had been issued with be withdrawn.
- Secondly, that the "consideration points" at which warnings would usually be issued under the terms of the policy should be extended in G’s case in the future.
The employer rejected the grievance. G brought a claim in the employment tribunal alleging that there had been a failure to make reasonable adjustments.
Employment Appeals Tribunal (EAT) decision
The employment tribunal rejected G’s claim and she appealed to the EAT. The EAT upheld the tribunal's finding that G was not being put to any substantial disadvantage in comparison to non-disabled employees and the duty to make reasonable adjustments did not therefore arise. This is because the policy applied to all employees, disabled or not, with the same level of absence.
The EAT stated that, in any event, it would not have found the adjustments sought by G to be reasonable, given the argument that the purpose of reasonable adjustments is to enable a disabled employee to carry out their work or to return to work after a disability-related absence. The adjustments sought in this case related to how absence from work should be treated and therefore fell outside the scope for which reasonable adjustments are required.
Court of Appeal (COA)
The COA disagreed with the EAT, holding that where an employee’s disability leads to a level of absence which a non-disabled employee is unlikely to have, the rules of an attendance management policy will put the disabled employee at a substantial disadvantage. The question is then whether it is reasonable for the employer to adjust the rules of the policy in the particular circumstances. In this case, the COA found that the tribunal was entitled to hold that the proposed adjustments were not reasonable.
It is now clear that, where a disabled person has disability-related absences which trigger the application of an absence policy, the duty to make reasonable adjustments will normally be engaged. The extent to which adjustments are reasonable, however, will depend on the particular facts and very often such adjustments may not be reasonable. Following this case employers should, however, consider adjustments (and their reasonableness) in cases of lengthy absence where disability is likely to be an issue.
BWB’s Employment team will be running a workshop on reasonable adjustments as part of their 2016 training programme (date TBD).
Posted on 11/12/2015 in Legal UpdatesBack to Knowledge