In the recent case of Griffiths v The Secretary of State for Work and Pensions the Court of Appeal has cleared up previous confusion concerning whether sanctions under a sickness absence policy are subject to the duty to make reasonable adjustments.

Facts

Ms Griffiths was an administrative officer at the Department for Work and Pensions. She was absent from work for 62 days suffering from post-viral fatigue. On her return to work an occupational health assessment found her to be suffering from fibromyalgia.

Ms Griffiths was then given a written warning under the DWP’s absence management procedure, the trigger for which was eight working days’ absence in any rolling 12 month period.

Ms Griffiths brought a grievance in which she claimed that the DWP had failed in its duty to make reasonable adjustments. The grievance was rejected and Ms Griffiths brought a claim of disability discrimination.

The crux of Ms Griffith’s claims was that:

• The 62 day absence should have been treated as exceptional absence under the attendance policy and disregarded; and/or
• The trigger point should have been extended by an additional 12 days with the effect that no disciplinary action would be considered until after 20 days’ absence.

Despite taking the matter all the way to the Court of Appeal, all three courts held that the adjustments Ms Griffith requested were not reasonable. It appeared, on the medical evidence available, that further periods of potentially lengthy absence were likely to arise. In this context, the courts held that that it was not reasonable to expect an employer to disregard an extended period of absence.

However, importantly (and more interestingly), the Court of Appeal confirmed that it was not an appropriate defence to such a claim that all employees (both disabled and non-disabled) were treated alike under the absence policy. This was not the appropriate test for considering whether reasonable adjustments should be made.

The correct test is whether disabled employees are placed at a particular disadvantage when compared with non-disabled employees. The application of an absence management procedure will inevitably place disabled employees at a particular disadvantage, given they are more likely to have absences due to ill health.   

Comment

The case is a helpful resolution of the previous confusion surrounding reasonable adjustments and absence management policies. Employers need to be aware that in addressing the sickness absence of disabled employees, care must be given to adjust the enforcement of their usual policies where appropriate.

However, it is also a useful reminder that simply being disabled is not a ‘carte blanche’ for sickness absence and employers are entitled to address such absence. Best practice suggests that gaining an informed medical view on the future likelihood of such absences and amending the usual absence triggers applied is often an appropriate measure.    

Griffiths v The Secretary of State for Work and Pensions [2015] EWCA Civ 1265, 10 December 2015 (Bailii).