I am currently engaged in the endurance test that is the month of December – a whirlwind of Christmas parties and late nights coupled with various child-related activities and the inevitable pre-holiday bugs and illnesses. All hope of healthy living goes out the window and promises of January detoxes somehow get me through (and we are only 8 sleeps away from the big day now…). It is also a classic time of year when employers face higher rates of sickness absence. Whilst these are (in general) likely to be short-term intermittent absences, a recent decision of the Court of Appeal will be of interest to any employers with sickness absence policies containing trigger points for disciplinary action.
In the case of Griffiths v The Secretary of State for Work and Pensions, the Court of Appeal considered whether the trigger for disciplinary sanctions under a sickness absence policy was subject to the duty to make reasonable adjustments. In this case, the policy in question applied to all members of staff and provided that formal action would be taken against an employee after they reached absence of an unsatisfactory level, known as the ‘Consideration Point’. This was set at 8 working days sickness in any rolling 12 month period. The policy also recognised that the trigger point may be increased if the individual is disabled (at the discretion of their manager). The Policy confirmed four stages of sanction up to and including dismissal. The Claimant was off sick for 66 days and received a formal warning on her return to work. She submitted a grievance asking for two adjustments to be made 1) that her warning should be withdrawn as her absence was the result of her disability; and 2) the policy should be modified to allow her longer periods of absence before she faced the risk of sanctions.
Her grievance was dismissed and she subsequently brought a claim under the Equality Act 2010 for a failure to make reasonable adjustments (s.20 EqA 2010). She did not bring a claim for discrimination arising from disability (s.15 EqA 2010). Her claim was rejected by both the ET and EAT. The ET (by a majority) dismissed the claim: as the policy applied to all employees, it was not persuaded that the Claimant was at a substantial disadvantage compared to a non-disabled person so far as sanctions were concerned and therefore did not invoke the requirements of s.20 EqA. The EAT rejected the appeal and agreed with the ET that no duty to make reasonable adjustments had arisen. Central to the analysis of both lower courts was the authority in RBS v Ashton, which held that there was no failure to make reasonable adjustments on similar facts.
The Court of Appeal in the present case identified two flaws in the reasoning of Ashton:
- The PCP relied on in Ashton was the sickness policy itself and if this were correct, the conclusion that disabled employees are not disadvantaged is inevitable. The Court of Appeal considered that formulating the PCP in this way fails to encapsulate why a sickness absence policy may in certain circumstances adversely affect disabled workers. In the present case, Lord Justice Elias’ view was that the correct PCP should be that ‘the employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions’. If this is applied, a disabled employee whose disability increases the likelihood of absence is disadvantaged in more than a minor or trivial way.
- In Ashton the comparator applied was that established in the case of Mayor and Burgesses of the London Borough of Lewisham v Malcolm – ie the comparator must be in a similar position to the disabled person in all relevant respects, save for the disability (ie a disabled and non-disabled employee with the same level of absence and to whom the same sanctions would have applied). Applying this comparator, in circumstances where non-disabled and disabled employees are treated in the same way would inevitably lead to a finding that no discrimination occurred. Elias LJ held that this approach was wrong. His view is that it is only necessary to ask whether the PCP puts a disabled person at a substantial disadvantage compared with a non-disabled person. The fact that a PCP applies equally to disabled and non-disabled employees does not eliminate the disadvantage if the PCP has an adverse effect on the disabled employee. Once there is evidence that the arrangements placed the disabled employee at a substantial disadvantage because of her disability, the duty under s.20 EqA arises.
Ultimately, Ms Griffiths appeal was dismissed. Whilst the Court held that there had been a duty to consider reasonable adjustments, it agreed with the ET’s conclusion that the adjustments proposed by Ms Griffiths were not reasonable. In relation to the revocation of the warning, Ms Griffiths’ absence had not been a one-off and further absences were likely. In relation to the extension of the Consideration Point, there was no obvious period by which to extend and if future absences were likely to be long, a relatively short extension period was not likely to remove the disadvantage in any event.
This case serves as a reminder that employers must always be live to the potentially discriminatory impact of any absence policy, and to ensure that consideration is given to any adjustments which might alleviate a disadvantage suffered by a disabled employee, to assess whether these might be reasonable. The points highlighted in the bullet points above are particularly relevant to this consideration.