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Staff absence management policies are still subject to reasonable adjustment obligations
Gemma Cawthray Associate, Veale Wasbrough Vizards
The Court of Appeal (CA) has held that absence management policies which require employees to maintain a certain level of attendance at work are subject to the duty of reasonable adjustments.
In Griffiths v Secretary of State for Work and Pensions, Ms Griffiths was an administrative officer who suffered from post-viral fatigue and firbromyalgia. She had been absent from work for 66 days, 62 of those days were related to her disability. She was given a written improvement warning in accordance with the Department of Work and Pensions' (DWP) Attendance Management Policy, where eight days' absence in any period of 12 months triggered the 'consideration point' for taking action. She lodged a grievance and requested that the warning be withdrawn and the policy amended so that disabled employees were permitted a longer period of absence before triggering the consideration point. The DWP refused to agree to her requests and Ms Griffiths brought a claim to make reasonable adjustments.
Employment Appeal Tribunal
The Employment Tribunal (ET) dismissed the claim and Ms Griffiths appealed to the Employment Appeal Tribunal (EAT). The EAT dismissed the appeal, having followed the previous EAT decision in Royal Bank of Scotland v Ashton, which held that the provision, criterion or practice (PCP) did not put the employee at a substantial disadvantage because a disabled employee was subject to the same policy as a non-disabled employee with a similar period of absence; therefore, no duty to make reasonable adjustments arose. The EAT determined that the policy had been applied equally to both disabled and non-disabled employees.
Furthermore, it commented that the removal of a warning and amendment of the policy were not 'steps' that were reasonable to have to take to avoid the disadvantage because they related to past and future absence from work.
Court of Appeal
Ms Griffiths appealed and the CA dismissed the appeal. However, it overturned some of the EAT's reasoning. The CA concluded that the EAT erred by considering that the respondent's policy was the relevant PCP. It found that the correct PCP to consider was the broader aim of 'a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal'. It found that the equal treatment of disabled and non-disabled employees was irrelevant.
Importantly, the Court of Appeal stated that the ET and EAT had been wrong to decide that the duty to make reasonable adjustments had not been engaged. The CA determined that the duty did apply and that the key consideration was whether the steps were reasonable or not. The CA found that due to the reoccurring nature of Ms Griffiths' condition, further periods of significant absence were likely to arise. The aim of the policy is to encourage a return to work and increasing the period of fully paid sickness absence would not be a reasonable step. In all the circumstances of the case the CA found that the proposed adjustments may have reduced the disadvantage, but were not unreasonable steps.
This case is significant in reinforcing that all absent management policies should be carefully considered and reviewed regularly. The question of when the duty to make reasonable adjustment arises, together with what constitutes a reasonable step, can be complicated and will need to be considered in light of the individual circumstances.