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Must an attendance policy be ‘adjusted’ for a disabled employee?

The judgment of the Employment Appeal Tribunal in the recent case of Griffiths v Secretary of State for Work and Pensions, will offer a degree of…

The Judgment of the Employment Appeal Tribunal in the recent case of Griffiths v Secretary of State for Work and Pensions,will offer a degree of comfort to employers when exercising an attendance procedure in respect of a disabled employee.

In this case the EAT held that Ms Griffiths’ employer did not breach the duty to make adjustments for her as a disabled employee. This was because, firstly, she was not put at a ‘substantial disadvantage’ by the exercise of her employer’s attendance policy resulting in a written warning. Secondly, the EAT held that it was not a ‘reasonable’ adjustment to extend the ‘trigger points’ for warnings in the attendance policy.

The facts

Ms Griffiths worked for the Department for Work and Pensions. In early 2011 she had a continuous period of sick-absence totalling 62 days in the period between 4th February and 2nd May. She was diagnosed by her GP as suffering from post-viral fatigue. An occupational health report in September 2011 confirmed that Ms Griffiths also suffered from fibromyalgia, and that she was a disabled person within the definition under the Equality Act 2010.

The DWP, prior to receiving the occupational health report, had already issued Ms Griffiths with a ‘written improvement warning’ under its attendance policy. The trigger point under the policy was set at eight working days in any rolling twelve months, which might be increased as a reasonable adjustment if the employee was disabled. That warning, issued in May 2011, outlined the ‘serious consequences that a pattern of future sickness absence might have’, which included dismissal or demotion.

In June 2011 Ms Griffiths raised a grievance against the issue of the warning. Her main complaint was that the DWP were in breach of the duty to make adjustments. She considered that a reasonable step for the DWP to take was: firstly, to discount the 62 day period of sick-absence with the result that the warning was withdrawn; and secondly to extend the trigger point which would usually engage the policy in the future. Ms Griffiths’ grievance was rejected. Neither of the requested adjustments was made.

Ms Griffiths brought a complaint of disability discrimination, specifically one of a failure to make reasonable adjustments. Ms Griffiths argued she was put at a ‘substantial disadvantage’ by the application of the DWP’s attendance policy. Her reasons included, that as a disabled person, she was more likely to have a higher level of sickness absence than non-disabled persons, which placed her at greater risk of dismissal.

The decision

By a majority, the Tribunal decided that there had been no breach of the duty to make adjustments and the claim failed. The Employment Appeal Tribunal, in dismissing the appeal, held that the Tribunal had correctly applied previous case-law authorities in deciding whether or not Ms Griffiths was put at a substantial disadvantage and had made no error in deciding on the facts of the case that the adjustments Ms Griffiths sought were not reasonable.

Whether a duty to make reasonable adjustments arose depended on whether Ms Griffiths could establish that she had been placed at a ‘substantial disadvantage’ in comparison to those who were not disabled. The EAT, agreeing with the Tribunal that first heard the claim, decided that she had not. The Tribunal reminded itself that a disabled person should not be placed at ‘some disadvantage’ viewed generally but, rather, at a disadvantage that is substantial when viewed in comparison to persons who are not disabled.

In this case, the Tribunal noted the attendance policy applied to all. All faced the same consequences as far as the sanctions under the policy were concerned. The stress and anxiety and the risk of dismissal were exactly the same for those persons who were also the subject of the policy but were not disabled.

In addition the attendance policy made further provisions for those with disabilities which included a discretion relating to the trigger points and warnings, which operated to the advantage of disabled persons. At the very least, Ms Griffiths was in a ‘neutral’ position. The fact she did not benefit from the discretionary provisions within the policy itself, simply meant that she failed to gain an advantage. Given that Ms Griffiths was treated at least as well as non-disabled persons, it could not be said she was at a disadvantage, let alone a ‘substantial’ disadvantage.

In relation to the adjustments sought by Ms Griffiths the EAT held the Tribunal had been entitled to find that neither adjustment was reasonable. The aim of a reasonable adjustment is to enable a disabled person to return to work or carry out their work. The adjustments Ms Griffiths sought related to the past and future treatment of absence from work, and were not therefore within either the spirit or purpose of a reasonable adjustment.

What does this mean for me?

This case provides helpful guidance on an issue of real concern for many of you. Any organisation that operates a formal attendance policy will at some point have struggled with a request to disregard an absence, waive a warning, or vary a trigger point. This case provides reassurance that applying an attendance policy to all employees will not automatically place disabled members of staff at a ‘substantial disadvantage’. Furthermore, deciding not to exercise a discretion to treat disabled employees more favourably will not necessarily be discriminatory.

This decision should not, however, be taken to mean that an attendance policy can never result in a substantial disadvantage to a disabled person (meaning that the duty to make adjustments would not arise). Every case depends on its facts and there may be exceptions. Also, this decision specifically concerns ‘procedural’ situations where the adjustment sought by a disabled individual will not actually enable them to return or remain in work. It is important, in every case, that you carefully consider exactly what you are being asked to do and why.

Alternative arguments

Whilst this case looked solely at reasonable adjustments, there was also another potential argument open to Ms Griffiths. She could potentially have argued that the attendance policy in itself worked to the disadvantage of disabled employees. It is possible that her argument that, as a disabled person, she was at greater risk of sanctions under the attendance policy, might have gained more ground had she brought it as a complaint of discrimination ‘arising in consequence’ of her disability. Had such an argument succeeded, DWP would have been required to justify the issue of the written warning. It therefore remains important to avoid a ‘one-size-fits-all’ approach when dealing with sickness absence, unless such an approach is capable of being justified.

Whilst this case makes it less likely that employers will fall foul of the duty to make reasonable adjustments, it is advisable to continue to adopt an approach to managing disabled individuals that takes account of all the relevant and specific circumstances.