The question of whether an employer should adjust trigger points for disciplinary action under their attendance policies in respect of disabled employees was at the centre of the recent Employment Appeal Tribunal (EAT) decision in Griffiths v Department for Work and Pensions. The impact of this decision on how employers should handle disability related absence under their sickness absence policy has left employment law practitioners divided.
Equality Act 2010
Ms Griffiths was an administrative officer and had worked for the DWP for 35 years. She had been absent from work suffering from what was initially diagnosed as post-viral fatigue and had been away from work for 62 days. On her return to work, she was referred to occupational health and diagnosed with fibromyalgia, a condition considered to be a disability within the meaning of the Equality Act 2010.
The DWP dealt with the absence under its attendance policy, which provided for an escalating warning process, beginning with a written improvement warning and culminating in action, including dismissal or demotion. The policy had a provision allowing adjustments to be made for disabled employees. Ms Griffiths received a written improvement warning as a result of her absence. She raised a grievance, complaining that her period of absence should be disregarded and the warning withdrawn and contending that, in future, the number of days of absence before the attendance policy was triggered should be increased. Her grievance was rejected and Ms Griffiths subsequently brought a claim for failure to make reasonable adjustments in the Employment Tribunal.
Employment Tribunal judgment
Before the Tribunal, Ms Griffiths argued that the DWP’s attendance policy placed her at a substantial disadvantage, namely being subjected to disciplinary action for her disability related absence and because, to avoid further action, she would have to take annual leave to cover additional disability related absences. The Employment Tribunal disagreed, on the grounds that the sickness absence policy applied to all staff, whether or not disabled, and as a result all staff were subject to the same sanctions in the event of sickness absence. Therefore, the Employment Tribunal concluded that disabled employees were not placed at a substantial disadvantage when compared with non-disabled employees. Ms Griffiths appealed the decision.
The EAT agreed with the tribunal’s finding that Ms Griffiths had suffered no substantial disadvantage. The EAT compared her situation to that of a non-disabled employee absent from work for the same period, who would be treated in an identical manner. Therefore, the EAT concluded that Ms Griffiths could not have experienced any disadvantage. The EAT also found that the adjustments Ms Griffiths was seeking were not reasonable in any event, as they would entail indefinitely extending the period before which disciplinary action could be taken in respect of absence.
The EAT concluded that the purpose of disability legislation was to enable a disabled employee to participate in the workplace and, as this would not be achieved by the proposed adjustment, it fell outside the scope of the legislation. This appears to overlook the fact that disabled employees who cannot comply with an employer’s attendance policy are likely to be dismissed and therefore precluded from participating in the workplace.
The minority of the tribunal, however, expressed the view generally accepted among employment law practitioners before the decision that best practice for employers was to adjust the trigger points for disciplinary action in absence management policies to avoid discrimination, on the grounds that disabled employees are more likely to have high levels of absences than non-disabled employees.
Some practitioners have hailed the decision as a relief for employers and on the face of it, the decision seems to suggest that employers no longer have to worry about adjusting the trigger points for disciplinary action under absence management policies for disabled employees.
However, businesses should be wary of relying too much on this decision and making no adjustments at all to their policies for disability related sickness. Firstly, the EAT decision is inconsistent with the reasoning in an earlier case before the EAT, in which it was implied that disability related absence should be discounted for the purposes of absence-management procedures. As a result, there is scope for further challenge of the EAT findings.
Best practice in sickness absence policy
Furthermore, following a process from first warning to dismissal without making any adjustments for disabled employees could open employers to challenge on the grounds that such action constituted discrimination arising from a disability, the dismissal being unfavourable treatment arising as a consequence of disability related absence. It might also give rise to a claim for indirect disability discrimination. It therefore remains best practice and commercially sensible for employers to adjust trigger points for disability related absences in order to avoid opening the floodgates to otherwise avoidable discrimination claims.
For more information on drafting a sickness absence policy or on employment law matters in general, please contact Lyons Davidson’s employment team.