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The Employment Appeal Tribunal recently handed down judgment in the disability discrimination case of Griffiths v The Secretary of State for Work and Pensions UKEAT/0372/13/JOJ.
By the time of the events giving rise to this claim, Ms Griffiths had been working for the Department for Work and Pensions (‘DWP’) for approximately 35 years as an Administrative Officer.In 2011, she had a continuous period of sickness absence of 62 days, which was attributed by her doctors to ‘post viral fatigue’. Upon her return to work, she was referred for an occupational health assessment, which confirmed the diagnosis, and added that she was also suffering from fibromyalgia, which causes widespread pain and extreme tiredness. The conclusion of the occupational health physician was to the effect that she was likely to be considered to be disabled.
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Prior to the receipt of this report, the DWP had already issued her with a written improvement warning in relation to her extended absence in accordance with its attendance management policy. The warning indicated that future absences might result in dismissal or demotion. Ms Griffiths lodged a grievance against the warning on the basis that as a disabled person, she should be entitled to two reasonable adjustments. Firstly, the 62 days’ absence should be disregarded. Secondly, that in future the consideration point (effectively the ‘trigger’ for action under the attendance management policy) should be increased. The policy provided for a discretionary adjustment of the consideration point as a reasonable adjustment in line with the Equality Act 2010.
Her grievance and subsequent appeal were unsuccessful. Ms Griffiths started to use her annual leave to cover sickness absences so as to avoid engaging the consideration point. She also brought an Employment Tribunal claim to pursue her allegations that the DWP had failed to make reasonable adjustments.
The Employment Tribunal, by a majority, determined that there had been no breach of the duty to make reasonable adjustments and rejected her claim. She appealed to the Employment Appeal Tribunal. Three main points were advanced at the appeal, namely the correctness or otherwise of the Employment Tribunal’s identification of the PCP, secondly the correctness or otherwise of the Employment Tribunal’s finding that a duty to make reasonable adjustments had not been triggered and thirdly whether the reasonable adjustments identified by Ms Griffiths were reasonable.
In relation to the first ground of appeal, it was submitted on Ms Griffiths’ behalf that the DWP’s attendance management policy could only avoid unlawfully discriminating against the disabled (expressed as a whole class of actual or prospective employees) if the discretionary facilities within it to make provision for disability related absences were in fact automatically or mandatorily deployed.
The Employment Appeal Tribunal rejected this submission. In a claim founded on a
breach of the duty to make reasonable adjustments, the proper focus must be on the application or operation of the PCP in the case in issue and thereafter (in relation to the specific case of the Claimant) whether there was an unfulfilled duty to make reasonable adjustments.
In essence, the submissions on Ms Griffiths’ behalf in this respect amounted to an attempt to graft abstract concepts of indirect discrimination onto the s. 20 EqA 2010 claim. However, as there was no indirect discrimination claim based on the attendance management policy in which the focus could be on the terms and effect of the policy itself on the employer’s workforce as a whole, or upon disabled employees as a class within that workforce (and even there had been, it was unlikely to a feasible claim given the discretion within it to make adjustments in favour of disabled employees).
The second main argument advanced at the appeal on behalf of Ms Griffiths was that the Employment Tribunal had erred in accepting the DWP’s submission that the attendance management policy did not place Ms Griffiths at a substantial disadvantage in comparison with persons who were not disabled. It was contended on her behalf that her exposure to a written warning as a step towards a possible future dismissal must constitute a substantial disadvantage.
Further, that disadvantage arose because, according to her, she was more susceptible to sickness absence, and therefore more likely to trigger the consideration point than a non-disabled employee unless the discretionary provisions of the policy were applied to her case.
It was argued that the Employment Tribunal had misapplied Royal Bank of Scotland v Ashton  ICR 632, and reached conclusions incompatible with the Court of Appeal authority of O’Hanlon v HMRC  ICR 1359 and the ECJ judgment in HK Danmark (acting on behalf of Jette Ring) v Dansk Almennyttigt Boligselskab  IRLR 571, usually referred to as ‘Ring’.
The Employment Appeal Tribunal found that the Employment Tribunal had correctly applied Ashton and O’Hanlon. The circumstances of the case were analogous to those in Ashton and they had correctly identified a PCP that at least applied to all employees, and in its own terms made special further provision for those with disabilities.
As everyone who worked for the DWP was subject to the policy, it could not be said that Ms Griffiths was placed at a substantial disadvantage in comparison with a non-disabled person in the same employment, who had been absent on sick leave but not for a disability related sickness. If a Claimant is treated at least as well as her non-disabled comparators, she cannot be placed at a disadvantage, let alone a ‘substantial’ disadvantage. The fact she had not benefitted from a discretionary advantage under the same policy did not affect this equation.
It was also submitted on Ms Griffith’s behalf that the ECJ’s approach to the EC Equal Treatment Framework Directive 2000/78 in Ring required the Employment Tribunal to have considered whether an apparently neutral PCP such as the attendance management policy created a disadvantage to the disabled person. This is because the ECJ could be taken to have observed (at paragraph 76) that disabled persons were more likely to be disadvantaged by the termination of their employment on account of periods of sickness absence.
These submissions were rejected by the Employment Appeal Tribunal. Ring (see paragraph 70) was concerned with the concept of indirect discrimination per Article 2(b) of the Directive, as opposed to the concept of ‘reasonable accommodation’ per Article 5.As the Equality Act 2010 adequately caters for both concepts within its ambit, there is no basis for departing from the domestic approach to ascertaining whether there was a failure to make reasonable adjustments per s 20, EqA 2010.
The second ground disposed of the appeal. However, for the sake of completeness the Employment Appeal Tribunal considered obiter whether the adjustments sought by Ms Griffiths could be reasonable adjustments. The adjustments sought were a retrospective increase in the consideration point to 62 days such that her written warning would have to be rescinded, and a future increase in the consideration point such that a future disability related absence would not trigger action under the attendance management policy.
The Employment Appeal Tribunal rejected the notion that these adjustments were reasonable. They accepted the submission made by Mr Leach on behalf of the DWP that reasonable adjustments under the EqA 2010 were only those that would enable a disabled employee to return to work or carry out their work. The adjustments sought by Ms Griffiths were not capable of amounting to reasonable adjustments under EqA 2010 as they involved the past and future adjustment of matters relating to the absence from work, matters which are outside the scope of protection afforded by EqA 2010.
The Employment Appeal Tribunal also upheld the Employment Tribunal’s finding that as a matter of fact, in any event, the adjustments proposed were unreasonable. It was not reasonable to expect the DWP to essentially put in place a perpetual extension of sickness absence which would not assist her in remaining at work.
In the writer’s view, this case correctly confirms the line of orthodoxy stretching back to Royal Bank of Scotland v Ashton, itself an application of Environment Agency v Rowan. Practitioners should not assume that a disabled employee is by virtue of being disabled, entitled to show a relative substantial disadvantage in relation to the application of an absence management policy simply by dint of being disabled. This attempt to bring indirect discrimination considerations into the comparative exercise of consideration of whether there has been substantial disadvantage to this Claimant has again been resisted.
Moreover, those who would point to paragraph 76 of the ECJ judgment in Ring for justification for this approach should consider the context of Ring and ask themselves the simple question - did the ECJ really mean to advance the sweeping (and itself discriminatory) assertion that all disabled people are more likely to have higher absence levels than non-disabled people? Of course not.