The recent Court of Appeal (CoA) case of Griffiths v The Secretary of State for Work
and Pensions has looked at the issues surrounding reasonable adjustments
and absence management policies. The CoA’s
decision means that when employers issue disciplinary warnings to their
employees because of sickness absence, they will need to consider their duty to
make reasonable adjustments.
Ms Griffiths worked as an Administrative Officer for the Department
of Work and Pensions (DWP). She was
absent from work for 66 days, mostly due to her disability. The DWP issued Ms Griffiths with a written
warning under its attendance management policy.
Ms Griffiths asked the DWP to withdraw the warning and to
change its attendance management policy. Due to her disability related
absences, Ms Griffiths wanted the absence threshold used to be increased. The
absence threshold allowed to non-disabled employees before receiving a written
warning would remain the same. The DWP
refused. Ms Griffiths brought a claim
which eventually reached the CoA however it dismissed her appeal. The CoA agreed with the previous decision of
the Employment Appeal Tribunal (EAT) that the DWP could not be expected to make
the adjustments which Ms Griffiths wanted but the CoA disagreed with the EAT’s
decision on the duty to make reasonable adjustments.
The CoA held that in relation to reasonable adjustments, the
relevant provision, criterion or practice that should be applied is that employees
should maintain a level of attendance so that they are not subject to any
disciplinary action. This would
inevitably disadvantage disabled employees who are likely to have higher
absence rates because of their disabilities. Employers will therefore need to decide
whether they can make any reasonable adjustments in their absence management
policies.
Going forward, employers will need to ensure that they can
justify any provision in their absence management policies that initiate
disciplinary action. Employers should
consider whether their policies are flexible enough to take their disabled
employees into account. This does not
mean, however, that it is necessary for employers to completely disregard any
absence due to a disability. Employers should consider each case on its own
when deciding what, if any, disciplinary action they should take. What will be considered a reasonable
adjustment will depend on the specific facts and the employee concerned.
Rhona Darbyshire
