Should an Attendance Policy be 'adjusted' for a disabled employee

The question of whether or not an adjustment for a disabled employee is 'reasonable' is one that many employers struggle with. One particularly challenging issue has always been whether flexibility should be granted to a disabled employee as a reasonable adjustment under a sickness absence policy, if the employee reaches the threshold for disciplinary or some other formal capability action.

As discussed during our recent seminar on Managing Sickness Absence, it was hoped that the case of Griffiths v Secretary of State for Work and Pensions (at the time awaiting judgment from the Court of Appeal), would provide further guidance to employers on this issue when the decision was published. Ms Griffiths was an administrative officer who suffered from post-viral fatigue and fibromyalgia. She asked her employer to withdraw a warning issued after a 66-day absence from work, mostly attributable to her disability, and to modify the policy for the future so that she could have longer periods of absence without sanction than would be permitted to a non-disabled employee. Her employer refused, and Ms Griffiths complained of a failure to make reasonable adjustments required under the Equality Act 2010.At the time of our seminar, the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) had(a little surprisingly) held that there had been no breach of the duty to make reasonable adjustments in this case. Both decisions relied on the fact that whether the duty to make reasonable adjustments arose depended on Ms Griffiths being able to establish that she had been placed at a 'substantial disadvantage' in comparison to employees who were not disabled. Both the ET and the EAT had decided that she had not, because a non-disabled employee absent for a similar period would have been subject to the same process and disciplinary sanction.The Court of Appeal,in overturning the EAT's decision, has confirmed that this is the incorrect approach to take. The judgment clarifies that Ms Griffiths was placed at a disadvantage in comparison to non-disabled employees by the requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal, given that due to her disability she was more likely tohave higher absence levels. On these grounds the requirement to make reasonable adjustments was engaged. Interestingly however the Court of Appeal upheld the ET's findings that on the facts neither of the proposed adjustments were in fact reasonable.

The Court of Appeal also pointed out that this sort of case was probably best brought as a complaint of discrimination arising out of disability rather than a reasonable adjustments case. Ms Griffiths could have claimed that the issue of a warning was something that amounted to unfavourable treatment because of something arising out of her disability (namely the disability related absence). The issue then would be whether the warning could be justified as a proportionate means of achieving a legitimate aim. Nonetheless the Court of Appeal makes clear that it was open to Ms Griffiths to bring the claim as a failure to make reasonable adjustments, as she chose to do. The Court also commented that it was “unfortunate “ that sickness absence policies often use the language of warnings and sanction that sound disciplinary in nature, which inappropriately suggests that the employee is in some way culpable even if their sickness absence is genuine.

The message to employers is now clear that reasonable adjustments to an attendance policy must always be considered for employees who are absent for reasons arising out of their disability. The question remains of course how far this adjustment should go and to what extent sickness absence thresholds need to be relaxed. As always when considering reasonable adjustments, this will need to be determined on a case by case basis depending on the level of absence, the nature of the disability and the sort of adjustment that is being considered.

The Court of Appeal recognised that it is extremely difficult to identify the extent to which sickness absence trigger periods should be adjusted for any particular disability related absence. A 'one-size-fits-all' approach is unlikely to be appropriate.Nonetheless it is now clear that in the case of disability related absence an employer should always consider whether some accommodation to the sickness absence policy ought to be allowed. The risk of not doing so is a claim based on a failure to make reasonable adjustments and/or a claim for discrimination because of something arising in consequence of the employee's disability.