Griffiths v Secretary of State for Work and Pensions  EWCA Civ 1265; (2016) EMPLR 011
Court of Appeal
Richards, Elias and McCombe LJJ
Sickness absence/attendance management policies may need to be adjusted for disabled employees, in order to comply with the duty under s 20 Equality Act 2010 to make reasonable adjustments if an employer’s ‘provision, criterion or practice’ puts a disabled employee at a substantial disadvantage. This case shows that employers probably comply with this duty if they include some flexibility in their policy for employees with disabilities; and that employers cannot reasonably be expected simply to ignore all absences that may be related to a disability.
G suffered from post-viral fatigue and fibromyalgia. She was given a warning under the employer’s attendance management policy after a 66-day absence, which mostly related to her disability. She complained to a tribunal about the warning, arguing that it would have been a ‘reasonable adjustment’ for the employer to ignore the absence as it was exceptional and ‘one-off’ and was caused by her disability; and that in future she should be allowed longer periods of absence than able-bodied employees.
The Court of Appeal accepted that the attendance management policy, which provided for warnings and could eventually lead to dismissal, was a ‘provision, criterion or practice’ which put G at a substantial disadvantage in comparison with persons who were not disabled. It considered, however, that it was not reasonable to expect the employer to take any steps in addition to the flexibility already included in the attendance management procedure - which gave the employer a discretion to allow longer periods of absence for disabled employees before applying disciplinary sanctions.
Some key observations by the Court of Appeal included:
- that it is unfortunate that absence policies often use the language of warnings, which makes them sound disciplinary in nature as if the employee is at fault;
- after lengthy absences, there comes a point when an employer can reasonably say that they should not be expected to accommodate the employee’s absences any longer;
- the argument that the worry and stress of being at risk of dismissal amounts to a ‘substantial disadvantage’ for a disabled employee will not get employees very far in most cases, because the only way to eliminate the stress altogether would be to ignore all sickness absences of disabled employees, a step which it would not be reasonable to expect employers to take; and it would be invidious to expect employers to assess an employee’s level of stress and anxiety when applying such policies;
- (echoing comments made in General Dynamics v Carranza) claims challenging the application of attendance management policies may be better considered and analysed under s 15 Equality Act 2010 (the right not to be discriminated against in matters arising as a consequence of disability).
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