Making reasonable adjustments to sickness absence procedures – a potential headache…

The recent Court of Appeal decision in Griffiths-v-Secretary of State for Work and Pensions provides important guidance for employers in all sectors and whatever their size on whether reasonable adjustments need to be made to sickness absence management procedures.

Managing Attendance

Managing attendance successfully is a perennial headache for employers who have to deal with the practical problems it presents to the effective running of their business.  At the same time, they have to carry out the difficult balancing exercise of supporting staff in what can be sensitive/difficult circumstances, whilst managing their absence fairly to minimise the risk of complaints/claims.

A key issue for employers, particularly when managing long-term absence, is the need to consider the question of whether or not the employee in question is “disabled” (as defined at s6 of the Equality Act 2010 (EqA)) and which consequently places the employer under a “duty to make reasonable adjustments” (as defined at s20 of the EqA) to enable the employee to overcome substantial disadvantage caused by their disability.

What is a disability?

An employee is disabled if s/he suffers from a physical or mental impairment that has a substantial and long-term adverse effect of their ability to carry out normal day-to-day activities.

Certain medical conditions will be deemed under the EqA to constitute a disability (i.e. even if they don’t meet the s6 definition) – specifically: blindness; severe sight impairment; severe disfigurements; cancer; HIV infection; and multiple sclerosis.

When does the duty to make reasonable adjustments arise?

If a staff member is disabled s/he will be afforded protection against disability discrimination by the EqA and in turn, the employer may be under a duty to make reasonable adjustments for that staff member.

The duty to make reasonable adjustments arises when an employer knows or ought reasonably to know that a member of staff is disabled and is placed at a substantial disadvantage by one or more of the following:

  • a provision, criterion or practice (PCP) (most likely to be relevant to managing attendance situations);
  • a physical feature of the employer’s premises;
  • an employer’s failure to provide an auxiliary aid.

In such circumstances the employer will need to take appropriate steps to address the disadvantage being suffered.  What is reasonable will be determined by the particular circumstances.

In the context of managing sickness absence it is likely that an employer will be aware of a staff member’s medical condition and prognosis through the individual’s attendance record and their provision of information to the employer or, especially in long-term absence situations, through Fit Notes or reports from a GP or occupational health provider.  This information means it is probable that an employer will either know, or ought reasonably to know, that the staff member is disabled.

If that is the case, the Griffiths decision means that employers must turn their attention to whether or not the process (whether formal or informal) for managing the employee’s absence, places the employee at a substantial disadvantage (in comparison to non-disabled employees).  If so, the statutory duty to make reasonable adjustments will be triggered and steps will need to be taken to reduce the risk of grievances/litigation.

Griffiths-v-Secretary of State for Work and Pensions

Background

The case related to a long-serving employee of the DWP who suffered from a number of medical conditions, specifically post-viral fatigue and fibromyalgia, which was diagnosed following an occupational health referral on the employee’s return to work.  The DWP ultimately accepted that the employee was disabled.

The DWP operated a formal Attendance Management Policy under which a series of warnings could be issued to staff absent on account of sickness.  These warnings culminated in the sanction of dismissal.  A DWP employee would receive a warning if their absence reached a certain level triggering the application of the Policy.  The trigger point was 8 days’ of absence in any rolling 12 month period.  However, the Policy provided that as a reasonable adjustment, the trigger point could be increased for disabled staff.

Ms Griffiths was issued with a written warning following a 66 day period of absence (62 days of which were on account of her disabilities) and cautioned that further periods of absence could result in the issue of further warnings under the Policy.  In response, Ms Griffiths raised a grievance and requested that two reasonable adjustments be made to counteract the substantial disadvantage she asserted she suffered under the Policy.  Specifically, she asked that:

  • her disability-related absence (62 days) be discounted and consequently the written warning withdrawn; and
  • the Policy be adapted and her trigger point increased by an additional 12 days (thereby providing her with a trigger point of 20 days’ absence before the Policy would be applied).

The grievance was not up-held and the DWP declined to implement the adjustments requested by Ms Griffiths.  She therefore brought proceedings in the Employment Tribunal, under s20 of the EqA, asserting a failure by the DWP to make reasonable adjustments for her.

ET and EAT Decisions

Both the ET and the Employment Appeal Tribunal (EAT) determined that there was no breach of the EqA, because the DWP’s duty to make reasonable adjustments was not engaged.  The courts’ decisions were predicated upon the fact that the DWP applied the Policy to all staff (both disabled and non-disabled) equally.  They were not surprising decisions as this had been the consistent prevailing view of the courts to such claims for many years.

Both courts determined in any event that the adjustments being requested by Ms Griffiths were not reasonable.

Court of Appeal Decision

The Court of Appeal (CoA) found, however, that Ms Griffiths had been subjected to substantial disadvantage by the application of the Policy because, on account of her disability, she was more likely to be absent than an employee without her disability and consequently suffer a disadvantage by the application of the Policy; this thereby triggered the duty to make reasonable adjustments.

Importantly, from a practical perspective for employers, the CoA determined that the relevant PCP placing Ms Griffiths at a substantial disadvantage was the need for DWP employees’ to maintain a certain level of attendance at work so as not to be subject to the risk of disciplinary sanctions.

Such a provision will ordinarily lie at the heart of any attendance management process, meaning that the decision has far-reaching implications for all employers, given that managing sickness absence is unfortunately a regular occurrence.

What is reasonable…?

The CoA did not, however, accept that the adjustments suggested by Ms Griffiths were reasonable, determining that:

  • it was not reasonable to expect an employer to discount lengthy periods of absence (in this case 62 days where the trigger point was 8 days) particularly in circumstances where the illness did not arise from a one-off medical condition and there could be further periods of lengthy absence in the future; and
  • the request to extend the trigger point by 12 days and thereby to 20 days was completely arbitrary and there was no obvious period by which the trigger point should be increased.  The CoA also noted that if periods of future absence were lengthy, this adjustment would be futile.

Warning

Unhelpfully for employers, the CoA indicated in its judgment that in many cases employees will be better served by raising a claim for disability-related discrimination (under s15 of the EqA) than a reasonable adjustments claim.  Disability-related discrimination claims are notoriously difficult for employers to defend, notwithstanding that such discrimination can be objectively justified.  To invoke this defence, an employer would require contemporaneous documentation/evidence to show that its actions were a proportionate means of achieving a legitimate aim (i.e. there were no viable alternative options with a less discriminatory impact).

Managing absence and seeking to improve attendance rates will be a legitimate aim for employers, but the manner in which they go about achieving it will be key and will inevitably include giving consideration to, and implementing, if appropriate, reasonable adjustments for disabled employees.

Lessons for employers

This case clarifies that employers will need to make reasonable adjustments to absence management processes, such as the trigger point for taking formal action.  This will be the case (even if the policy applies equally to all staff) where an employee can demonstrate that their disability predisposes them to higher rates of absence and consequently a greater risk of sanction in comparison to colleagues.  This is plainly not going to prove difficult for many employees to show.

Whilst this decision may create obligations for employers, and the need therefore to consider the steps taken in managing absence carefully, it does not mean that any adjustments proposed by staff will necessarily be reasonable and therefore have to be implemented.  The CoA decision makes it clear that only steps that directly relate to the ability to integrate the employee into employment (i.e. steps that enable an employee to remain at work or to return to work) are likely to be reasonable in the context of attendance management.   Steps that relate to an employee’s personal circumstances, such as removing a warning, are unlikely to be reasonable adjustments.

In private practices, where there may not be formal attendance procedures, following this decision it will be even more important to ensure that all staff are at least initially treated equally and that where there is information pointing to a need for adjustments, time and care is taken, perhaps with focused input from the employee’s GP or an occupational health provider on possible adjustments that allow the employee to reduce their levels of absence and/or return to work.  All attendance management discussions/decisions should be recorded in writing so there is a contemporaneous record that can be referred to if there are future complaints/disputes.

Conclusion

This is a difficult area both practically and legally, given that claims for discrimination can be raised under various different heads of claim by any employee/worker (there is no qualifying service level) and the level of compensation that could be awarded is uncapped.

It would therefore be prudent to review your attendance management procedures/practices to ensure these are clear, consistently followed and take proper account of potential disability discrimination issues, including the need for reasonable adjustments.  If in doubt take legal advice earlier rather than later to avoid a large legal headache.