Sickness absence: attendance management policies are subject to the duty to make reasonable adjustments
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Sickness absence: attendance management policies are subject to the duty to make reasonable adjustments

Background law

Section 20(3) of the Equality Act 2010 imposes a positive duty on employers to make reasonable adjustments for disabled workers where a provision, criterion or practice (PCP) places the disabled person at a disadvantage in comparison with those who are not disabled.

In this case, the Court of Appeal considered whether the duty to make reasonable adjustments applied to an attendance management policy under which disciplinary sanctions were triggered once a certain level of absence had been reached.

Facts

The employer operated an attendance management policy (the Policy), which provided that formal action may be taken where a worker's sickness absence reached 8 days within any rolling 12 month period. This 8 day trigger was known as the "consideration point". The Policy provided that the consideration point could be adjusted for disabled workers by adding on a number of additional days ring-fenced for disability-related absences only. The consideration point was not increased in this way for the Claimant.

The Claimant had 66 days' absence, 62 of which were disability-related, and she was issued with a written improvement warning. She raised a grievance arguing that the Policy should have been adjusted in the following ways:

her disability-related absence should have been disregarded altogether (with the result that the written improvement warning would have been rescinded); and

the consideration point should have been increased from 8 to 20 days.

The grievance was rejected and the Claimant went on to bring an Employment Tribunal claim, arguing that there had been a failure to make reasonable adjustments.

Decisions of the Employment Tribunal and EAT

The employer argued that the duty to make reasonable adjustments was not engaged because the PCP (namely, a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal) did not subject disabled persons to a disadvantage. Rather, the policy was applied to all workers in the same way. Further, they argued that even if the duty was engaged the adjustments requested were not reasonable in the circumstances.

The Employment Tribunal accepted that the duty was not engaged because the policy applied to all workers in the same way, meaning there was no substantial disadvantage for disabled workers. Further, it considered that the adjustments requested were not reasonable, since they would serve only to extend the sickness absence and would not enable the Claimant to remain at work.

The EAT upheld the Employment Tribunal's decision and also held that the adjustments requested were not "steps" within scope of the legislation.

Decision of the Court of Appeal

The Claimant appealed to the Court of Appeal. We consider the key grounds of appeal below.

Was it correct that there was no substantial disadvantage so as to engage the duty to make reasonable adjustments?

The Court disagreed with the EAT and allowed the Claimant's appeal on this point.

The EAT had relied on the decision in RBS v Ashton (Ashton), a case with a similar factual matrix, in which the EAT had found that there was no substantial disadvantage. There, the EAT decided that the correct comparison was with a non-disabled worker, who would have been treated in the same way. Therefore, there was no disadvantage.

The Court of Appeal disagreed with the EAT in Ashton. The PCP used in that case was the attendance management policy itself, which could not be said to disadvantage disabled persons as it made allowances for them. The problem was that framing the PCP in this way failed to encapsulate why an attendance management policy adversely affected disabled workers. Instead, the PCP should be framed as the requirement to achieve a certain level of attendance or risk disciplinary sanctions. The Court said that once the PCP was framed in this way: "…it is clear…that a disabled employee whose disability increases the likelihood of absence from work on ill health grounds is disadvantaged in more than a minor or trivial way".

Further, the proper comparison exercise involves asking whether the PCP puts the disabled worker at a substantial disadvantage compared to the non-disabled person. The fact they are treated equally and may be subject to the same type of disadvantage does not eliminate the substantial disadvantage for the disabled worker if the PCP: "…bites harder on the disabled, or a category of them, than it does on the able bodied". In other words, the fact that the PCP disadvantages non-disabled workers (to a lesser extent) is irrelevant.

Was it correct to conclude that the adjustments requested were not "steps" within scope of s.20 of the Equality Act 2010?

The Court disagreed with the EAT and allowed the Claimant's appeal on this point.

The Court held that there was no reason to artificially narrow the concept of what constitutes a step. Any modification of, or qualification to, the PCP in question which would, or might, remove the substantial disadvantage caused by the PCP is, in principle, capable of amounting to a relevant step. In this case the proposed adjustments were clearly capable of reducing the disadvantage for the Claimant.

Was it correct to conclude that the adjustments requested were not reasonable?

The Court agreed with the EAT and rejected the Claimant's appeal on this point. This meant that the Claimant's appeal failed overall.

As far as discounting the disability-related absence was concerned, the Court agreed that it was not reasonable to expect the employer to write off 62 days' worth of sickness absence. This was the case despite the fact that the absence occurred around the point of diagnosis and the adoption of a treatment plan, and so may have been exceptional. The Court said:

"…an employer is entitled to say, after a pattern of illness absence, that he should not be expected to have to accommodate the employee's absences any longer. There is nothing unreasonable….in the employer being entitled to have regard to the whole of the employee's absence record when making that decision"

As far as extending the consideration point was concerned, the Court's view was that there was no obvious period by which it could be increased so as to eliminate all stress and worry. A relatively short extension would have been of limited value because the Claimant would have still hit the consideration point (albeit that it would have taken a little longer). However, the Court did note that it might be reasonable to extend a trigger point where the absence is limited and occasional. However, it was not appropriate in the Claimant's case.

Comment

This decision confirms that attendance management policies are subject to the duty to make reasonable adjustments. The question will be whether the adjustment requested in any particular case is reasonable. In cases of lengthy absence, it will not usually be reasonable to expect the employer to discount all disability-related absence and/or extend the trigger point for sanctions.

Whilst this is a welcome decision for employers, it is worth remembering that the Court sounded a note of caution when it said that even if an adjustment is not reasonable, this does not give the employer carte blanche to issue a disciplinary sanction or dismiss. It would still be possible for such actions to amount to discrimination arising out of a disability under section 15 of the Equality Act 2010.

Griffiths v Secretary of State for Work and Pensions

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