In the recent case of Griffiths v The Secretary of State for Work and Pensions, the Court of Appeal confirmed that the trigger for disciplinary sanctions under a sickness absence policy was subject to the duty to make reasonable adjustments. The Equality Act requires employers to make reasonable adjustments where a provision, criterion or practice is applied which puts a disabled person at a substantial disadvantage compared to people who are not disabled.
Ms Griffiths was employed as an administrative officer and had worked for the Department of Work and Pensions for 35 years. She had been off sick for 62 days due to post—viral fatigue. When she returned to work, she was found to be suffering from fibromyalgia.
The DWP had an attendance management policy which provided for an escalating warning process. The policy was activated when an employee was absent for eight working days in any 12 month period (the “consideration point”).
When Ms Griffiths reached the consideration point, she was given a written warning. No allowances were made for her disability. Ms Griffiths lodged an internal grievance, claiming that the DWP had failed to make reasonable adjustments. The grievance was rejected, so whilst continuing to work for the DWP, Ms Griffiths brought a disability discrimination claim, on the basis that the DWP had failed to make reasonable adjustments. She claimed that the following adjustments should have been made to the attendance management policy:
- Her 62 day absence should have been disregarded; and
- The consideration point should have been increased from 8 days to 20 days.
The CA held that the DWP was under a duty to make reasonable adjustments to its attendance management policy, as the requirement to maintain a certain level of attendance in order to avoid disciplinary sanctions was a requirement that would substantially disadvantage disabled employees. However, on the facts, neither of the adjustments which had been suggested by Ms Griffiths were reasonable.
As Ms Griffiths’s sickness absence did not relate to a one-off condition and further lengthy periods of sickness absence were likely to occur, it was not reasonable to expect the DWP to disregard a long period of absence. With regard to extending the consideration point, the CA confirmed that it may be reasonable to extend it where periods of absence are short. However, there was no obvious period by which the consideration point should be extended in this case and as future absences were likely to be long, a relatively short extension of the consideration point was not a reasonable adjustment to make, as it was unlikely to remove the disadvantage.
This case makes it clear that the trigger points for disciplinary sanctions under sickness absence policies are subject to the duty to make reasonable adjustments. Whether it is reasonable for a particular absence to be disregarded and/or for trigger points to be extended will depend on all the circumstances, including the nature of the disability and the duration of the absence or absences.