Disability-related sickness absence is a perennial source of anxiety for employment lawyers, managers, human resources professionals, trade union representatives and employees. What does the law require when an employee is thrust into absence management procedures by virtue of absences caused by a disabling condition? How much leeway should be requested or granted? How should such a claim be properly drafted on behalf of the employee and how will it be analysed by the time it arrives at an employment tribunal?
For a number of years, it was thought that the pendulum had swung in favour of the employer following decisions of the EAT in Royal Bank of Scotland v Ashton [2011] ICR 632 and Griffiths v Secretary of State for Work and Pensions UKEAT/0371/13: the application of an absence management procedure did not disadvantage disabled employees any more than non-disabled employees. Therefore, the duty to make reasonable adjustments did not arise at all.
The EAT’s decision in Griffiths was appealed to the Court of Appeal. Its judgment is important, above all for explaining that the management and litigation of disability-related absence turns on proper analysis, not on some employer or employee bias inherent in the legislation.
The circumstances of Griffiths were typical of a long term disability-related absence. Mrs Griffiths received a formal warning from the DWP following a period of disability-related absence. Mrs Griffiths argued that the DWP should make two adjustments: discount her disability-related absence and modifiy its absence management procedure so that she was allowed more days of sickness absence before a warning was issued.
Mrs Griffiths reasonable adjustments claim ultimately failed. Significantly, she did not bring a claim of discrimination arising from disability.
The correct PCP in a disability-related absence claim
The first point to take from the Court of Appeal’s decision in Griffiths is that an employee in Mrs Griffiths’ situation should not identify the PCP as the general absence management policy itself because:
- Such a policy does not per se disadvantage disabled employees, particularly where it allows for special consideration to be made for them.
- It does not recognise why an absence management policy might adversely affect disabled employees in certain circumstances.
So, how should Mrs Griffiths have formulated her PCP? The correct PCP in a case like this should focus not on the policy, but rather on the employer’s requirements for consistent attendance at work. It is the employee’s failure to meet that requirement that may end in warnings and ultimately dismissal. As the Court of Appeal identified, disabled employees are more likely to have more frequent and perhaps longer absences. They will therefore find it more difficult to comply with the requirement for consistent attendance at work and will therefore be more disadvantaged by it.
The correct reasonable adjustment
Mrs Griffiths’ case also illustrates that if a proposed adjustment is not geared towards reintegrating the employee into employment, it is unlikely that it is reasonable for the employer to make that adjustment. Representatives acting for claimants should therefore ensure that it is clear how any reasonable adjustments claimed will reintegrate the employee back into employment.
How else could Mrs Griffiths have brought her claim?
In cases concerning disability-related absence management, claimants who only allege a failure to make reasonable adjustments do so at their peril. Unfortunately for Mrs Griffiths, her case clearly illustrates this. It is implicit from Elias LJ’s judgment in Griffiths that all of Mrs Griffiths’ difficulties with her reasonable adjustments claim would have been eased or overcome if she had alleged discrimination arising from disability. Since the formal warning issued to her was obviously connected with her disability, it would then have been for the employer to explain and justify that treatment. In short, reasonable adjustments and discrimination arising from disability claims should go hand-in-hand in virtually all cases of alleged mismanagement of disability related absence.
