Disability Discrimination – Absence Management Policies

23 December, 2015

Employment - PoliciesThe recent Court of Appeal (CoA) case of Griffiths v The Secretary of State for Work and Pensions has looked at the issues surrounding reasonable adjustments and absence management policies.  The CoA’s decision means that when employers issue disciplinary warnings to their employees because of sickness absence, they will need to consider their duty to make reasonable adjustments.

Ms Griffiths worked as an Administrative Officer for the Department of Work and Pensions (DWP).  She was absent from work for 66 days, mostly due to her disability.  The DWP issued Ms Griffiths with a written warning under its attendance management policy. 

Ms Griffiths asked the DWP to withdraw the warning and to change its attendance management policy. Due to her disability related absences, Ms Griffiths wanted the absence threshold used to be increased. The absence threshold allowed to non-disabled employees before receiving a written warning would remain the same.  The DWP refused.  Ms Griffiths brought a claim which eventually reached the CoA however it dismissed her appeal.  The CoA agreed with the previous decision of the Employment Appeal Tribunal (EAT) that the DWP could not be expected to make the adjustments which Ms Griffiths wanted but the CoA disagreed with the EAT’s decision on the duty to make reasonable adjustments. 

The CoA held that in relation to reasonable adjustments, the relevant provision, criterion or practice that should be applied is that employees should maintain a level of attendance so that they are not subject to any disciplinary action.  This would inevitably disadvantage disabled employees who are likely to have higher absence rates because of their disabilities.  Employers will therefore need to decide whether they can make any reasonable adjustments in their absence management policies.  

Going forward, employers will need to ensure that they can justify any provision in their absence management policies that initiate disciplinary action.  Employers should consider whether their policies are flexible enough to take their disabled employees into account.  This does not mean, however, that it is necessary for employers to completely disregard any absence due to a disability. Employers should consider each case on its own when deciding what, if any, disciplinary action they should take.  What will be considered a reasonable adjustment will depend on the specific facts and the employee concerned.

Rhona Darbyshire