Can I apply our sickness absence policy to an employee whose sickness absence is due to their disability?

The facts

An employee with 35 years’ service has been absent for 62 days due to post-viral fatigue.  Following her return to work she is found to be suffering from fibromyalgia (a long-term condition with symptoms that include pain all over the body, fatigue, headaches and muscle stiffness).

Your absence policy states that if an employee is absent for 8 working days in any 12 month period they will reach the “consideration point”. This means that the policy is activated and a decision should be made as to whether to start the employee on a series of warnings that could lead to dismissal or demotion. The policy provides that the consideration point can be extended as a reasonable adjustment for disabled employees.

Would you extend it for this employee?

The Department for Work and Pensions (DWP) didn’t. Ms Griffiths was issued with a written warning. Ms Griffiths submitted a grievance alleging that there had been a failure to make reasonable adjustments, namely that:

1. Her 62-day absence should have been treated as exceptional absence and disregarded so that the written warning would be revoked; and
2. The consideration point should have been extended by an additional 12 days so that no disciplinary action would be considered until she had been absent for 20 days.

Ms Griffiths issued a claim for failure to make reasonable adjustments on this basis.

The law

In order for the duty to make reasonable adjustments to arise, there must be a provision, criterion or practice (PCP) that puts a disabled person at a substantial disadvantage in comparison with those who are not disabled.

Employment Tribunal (ET) decision

The ET found that the PCP was the “requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal.” They dismissed the claim on the basis that this policy was applied to all employees and the same sanction would have been applied to a non-disabled person in the same circumstances. It considered if the adjustments would have been reasonable in any event and concluded that they were not.

Employment Appeal Tribunal (EAT) decision

The EAT dismissed Ms Griffiths’ appeal and upheld the ET’s decision. It acknowledged that the policy contained a special provision for disabled people but did not consider it was necessary to apply this. It felt there was no substantial disadvantage as all employees would be treated in the same way. It also held that the proposed adjustments were not reasonable in any event.

Court of Appeal (CoA) decision

The CoA dismissed Ms Griffiths’ appeal and held that the adjustments proposed were not reasonable steps for the employer to be expected to take. However, the CoA overturned the EAT’s finding in relation to the duty to make reasonable adjustments. In other words the duty did arise, but the proposed adjustments were not reasonable.

The CoA agreed that the PCP was, the “requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal.” However the CoA felt it was clear that disabled employees would be substantially disadvantaged by this requirement if their disability increased the likelihood of their absence from work.

The comparator should not have been an employee in the same position as Ms Griffiths but without a disability as this inevitably leads to a finding no discrimination has occurred. This is the wrong comparator for the purposes of determining a duty to make reasonable adjustments. Instead it is only necessary to ask if the PCP puts the disabled person at a substantial disadvantage when compared with a non-disabled person. The fact that a PCP applies equal treatment to disabled and non-disabled employees does not eliminate the disadvantage suffered by the disabled employee. The duty to make reasonable adjustments is not satisfied by treating all employees in the same way. It requires employers to take positive steps.

The Tribunal and EAT had been wrong to find that the duty to make reasonable adjustments did not arise simply because the policy was applied equally to everyone. The duty arises once there is evidence that the PCP places the disabled person at a substantial disadvantage because of their disability.

DWP argued the purpose of reasonable adjustments was to encourage a return to work; neither of the proposed adjustments would do this and would in fact give less of an incentive to return to work. The CoA disagreed with this argument and held that any modification or qualification to the PCP in question, which would or might remove the substantial disadvantage cause by the PCP, is in principle capable of amounting to a relevant step (i.e. adjustment). The only question is whether it is reasonable for it to be taken. However, the judge did observe that where the disadvantage suffered was not directly related to the ability to integrate the claimant into employment (e.g. where it relates to the individual's personal circumstances as opposed to their employment) the steps required to address this are not likely to be reasonable for an employer to take. He referred to another case on this point where it was not considered to be a reasonable adjustment to increase the period of full sick pay in order to relieve the claimant’s financial hardship.

It was only for the CoA to decide whether the EAT’s conclusion that the adjustments were not reasonable could be sustained on the evidence. The CoA was satisfied of this. The reasoning was:

1. It was not reasonable to expect an employer to disregard an extended period of absence, particularly because the sickness absence did not relate to a one-off incident and was likely to re-occur.
2. There was no obvious period by which the consideration point should be extended.  If future absences were also lengthy, a short extension would not remove the disadvantage.

Points to note

• When dealing with sickness absence cases, employers should have the duty to make reasonable adjustments in mind.
• There is no automatic obligation to change the trigger dates for disabled staff.
• It is important to identify the correct PCP – for example in a previous case the PCP had been identified as the sickness absence policy itself. It was found that this didn’t cause a substantial disadvantage as it applied equally to all employees and contained special allowances for disabled people – this led to the conclusion that disabled people could not be disadvantaged by it. If the PCP is defined in this way, any policy that contains provision for disabled people (whether this is put into practice or not) would result in no discrimination.
• Ms Griffiths did not bring claims of discrimination arising from disability and indirect discrimination, these areas should also be considered when dealing with sickness absence cases.
• This is a complex area of law and we would suggest that you seek advice in relation to the particular circumstances of any absence cases you are dealing with of this nature.

For more information

If you require advice in relation to managing sickness absence, please contact Faye Rush.