The Court of Appeal has recently considered whether sickness absence policies that apply equally to disabled and non-disabled employees can be capable of putting disabled employees at a disadvantage. If not, then no reasonable adjustments would be required.
This was a claim for failure to make reasonable adjustments made by Ms Griffiths against the Department for Work and Pensions. She had worked there for 35 years, but at the time in question was suffering from post-viral fatigue and fibromyalgia and had had 62 days off with this.
The DWP’s sickness absence policy contains a warning process which is triggered after 8 days’ absence in any rolling year. The policy provided that “exceptional” absence should be disregarded. Importantly, the policy also provided that the 8 week trigger point could be reconsidered for disabled employees.
Ms Griffiths’ claim was that the sickness policy put her at a substantial disadvantage, and that as reasonable adjustments the 62 day absence should have been treated as exceptional, and the 8 day trigger point extended to 20 days.
The DWP firstly argued that the policies in question did not and could not put Ms Griffiths at a substantial disadvantage because they applied equally to disabled and non-disabled employees. The Court of Appeal disagreed, and made it clear that the relevant requirement here was the one to maintain a certain level of attendance in order to avoid dismissal. When framed like this, the policy did put disabled employees at a particular disadvantage as compared to non-disabled employees.
Secondly, the DWP argued that the adjustments Ms Griffiths wanted were not reasonable anyway. The Court of Appeal agreed with the DWP on this point. Given that further periods of absence were likely to be lengthy in Ms Griffiths’ case, the 60 day absence could not be argued to be “exceptional”. Furthermore, the short extension to the 8 day point argued for by Ms Griffiths was unlikely to remove any disadvantage. Again, this was in her particular case where long-term absences were likely.
This case lays to rest some uncertainty about whether adjustments need to be made where sickness policies apply equally to all members of staff. Quite clearly, they now do.
The case also highlights how difficult it is for claimants to succeed in reasonable adjustment claims where there is poor attendance. Ms Griffiths should have brought her claim section 15 of the Equality Act 2010, which arguably would have given her an easier run at it, as it would simply have required her to establish unfavourable treatment in the first instance.