This aims to be a bite-sized summary of the headlines to take away from the recent Court of Appeal case of Griffiths v The Secretary of State for Work and Pensions. Minimum case detail is intended.
The alarm bell:
Employees who may have a disability and whose sickness absence is reaching triggers for disciplinary sanctions within the company’s absence management procedure.
An employer has a duty to make reasonable adjustments where it knows (or ought reasonably to know) that an employee has a disability and there is a provision, criterion or practice which places them at a substantial disadvantage in comparison with employees who are not disabled. That duty applies to sickness absence procedures, even though, on the face of it, those procedures apply to all employees equally.
- Employers must be alert to the possibility that an employee’s illness or condition may amount to a disability under the Equality Act 2010.
- If so, consideration should be given to whether there are adjustments which it would be reasonable to make to an absence management procedure, such as the postponement of warning triggers.
- Only reasonable adjustments which would alleviate the disadvantage suffered are required to be made. A Tribunal will determine what is reasonable based on the facts of the specific case. (In the circumstances of the Griffiths case, revoking the warning was not considered to be reasonable, but it might be in a different case, for example where it related to a single period of disability-related absence).
- It is good practice for employers to record in writing their discussions and consideration of reasonable adjustments (including the basis on which any adjustment was not considered reasonable to make, if applicable).
- The risk of a separate form of disability discrimination, particularly unfavourable treatment arising in consequence of the employee’s disability, should not be forgotten. Even if an adjustment was not required to be made, on the basis that it would not be reasonable in the circumstances, an employer might still fall foul of the Equality Act if the imposition of a warning under the absence management procedure amounted to less favourable treatment for a reason arising from disability. An employer also therefore needs to be confident that it would be able to defend such action by showing that the treatment was a proportionate means of achieving a legitimate aim in the particular circumstances of the case.
Employers who apply absence management procedures without sufficient regard to the duty to make reasonable adjustments, as well as other potential forms of discrimination, may risk disability discrimination claims being brought for compensation (including compensation for injury to feelings) under the Equality Act.
Partner, Workwise Legal LLP