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The Court of Appeal has handed down its judgment in Griffiths v Secretary of State for Work and Pensions  EWCA (Civ) 1265, dismissing Ms Griffiths’ appeal from the judgment of the EAT ( EqLR 545), which had in turn dismissed an appeal against the judgment of the Employment Tribunal. The Tribunal had rejected her claim of disability discrimination in the form of a failure to make reasonable adjustments in respect of her disability-related absence.
Ms Griffiths had been absent from work for disability-related reasons for an extended period of 62 days consecutively, which triggered a second warning pursuant to the DWP’s attendance management policy (‘AMP’). The AMP contained special provisions enabling the DWP to adjust the ‘consideration point’ at which warnings would be triggered, in the case of disabled employees, but in this instance the DWP declined to do so. Ms Griffiths brought a claim alleging a breach of the duty to make reasonable adjustments pursuant to s 20 of the Equality Act 2010, arguing: (1) that the warning should be rescinded, and (2) her consideration point should have been adjusted for the future to alleviate the stress brought on by the risk of future sanctions, including dismissal.
The Tribunal applied Royal Bank of Scotland v Ashton  ICR 632 (EAT), and concluded that no duty to make adjustments had arisen: the PCP of the application of the AMP applied to everyone, and non-disabled persons with the same level of sickness absence would also have received a warning, so that the necessary comparative substantial disadvantage did not arise. In any event, the tribunal considered that the proposed adjustments were not reasonable, largely on the basis of O’Hanlon v HMRC  ICR 1359 (CA): the extent of absence was such that it was not reasonable to rescind the warning, and the prospective adjustment seeking an additional ‘buffer’ in practice would have entailed perpetual adjustment of the consideration point on the occasion of any further sickness absence, and setting the level of that buffer would have been an arbitrary exercise based on subjective criteria. The EAT upheld the Tribunal’s judgment.
Lord Justice Elias – giving the leading judgment of the court – dismissed the appeal on the single basis that the tribunal had been entitled to conclude that the proposed adjustments were not reasonable for the reasons given. Consequently, it was not strictly necessary to determine the antecedent issues.
Nonetheless, he gave extensive obiter views to the effect that the EAT judgment in Ashton had wrongly identified the PCP in such cases as the application of the AMP, rather than a requirement to attend work at a certain level so as to avoid sanction,and had wrongly applied a Malcolm comparator (London Borough of Lewisham v Malcolm  IRLR 700 (HL)). The duty to make adjustments does technically arise in such cases: if the requirement is to attend work sufficiently and the disabled claimant has difficulty in that regard because of disability-related absence, prima facie they are at a disadvantage compared to non-disabled persons. But the central issue in such cases is the question of the reasonableness of potential adjustments.In expressing the view that Malcolm does not apply in reasonable adjustments cases, the court has restored what was often regarded as the orthodox view of the comparative exercise, whilst glossing over the fact that Baroness Hale in Archibald v Fife Council  ICR 954 (HL) and the Court of Appeal in O’Hanlon (obiter) both relied on Clark v Novacold Ltd  ICR 951 (CA) on the comparison issue. Clark was of course emphatically overturned by the House of Lords in Malcolm, but Elias LJ considered that Malcolm nevertheless did not affect the received view of the Archibald approach to comparison.
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The overall effect of the judgment in Griffiths is essentially to transpose the approach taken by the Court of Appeal in O’Hanlon in the context of sick pay, to the context of sickness absence: there, sick pay rules reducing employees’ pay to half after 6 months and nil after 12 months, put the disabled employee at a comparative substantial disadvantage giving rise to the duty, but the adjustment of providing more pay, was not reasonable: the assessment of whether any individual would be deserving of that adjustment would be arbitrary and subjective, and further might well encourage absence rather than attendance. Elias LJ agreed with the submission that the employer’s position is equally invidious in the attendance management context:
‘I would accept that whilst a disabled employee may suffer disadvantages not directly related to the ability to integrate him or her into employment, the steps required to avoid or alleviate such disadvantages are not likely to be steps which a reasonable employer can be expected to take’ (para 68)
‘… in a case like this when lengthy further periods of absence are anticipated, the period by which the consideration point should be extended becomes arbitrary. … in so far as the alleged disadvantage is with the stress and anxiety caused to a particular disabled employee, it would be invidious to assess the appropriate extension period by such subjective criteria’ (para 77)
‘No doubt there will be cases where it will be clear that a disabled employee is likely to be subject to limited and only occasional absences. In such a situation, it may be possible to extend the consideration point, as the Policy envisages, in a principled and rational way and it may be unreasonable not to do so. But in my view the majority has taken the view that this is not appropriate in a case of this nature. In my judgment, the majority was entitled to reach that conclusion.’ (para 78)
To like effect, the judgment endorses the EAT’s more recent judgment in General Dynamics Information Technology Ltd v Carranza  ICR 169 (EAT): as the EAT pointed out in that case, while the duty may arise, and while a s 15 claim would also offer a more straightforward analysis, ultimately where disabled claimants are absent for extended periods even with disability-related absences (that are not the result of anything the employer has done or failed to do), they will generally face an uphill struggle in pursuing a reasonable adjustments claim and in overcoming an objective justification defence to a s 15 claim of discrimination ‘arising from’ disability.The outcome will depend on the extent of past absence and the medical evidence as to the prognosis and likely pattern of future absences. The fact that absences are disability-related, is not a simplistic panacea rendering disabled employees immune from attendance management or dismissal.