In Griffiths v Secretary of State for Work and Pensions, the trigger point for a warning under the employer's attendance policy was eight working days of absence in any rolling 12-month period, whereupon individuals would be subjected to formal action. However, under the policy, if the employee is disabled, the trigger point could be increased as a reasonable adjustment. Griffiths suffers from post-viral fatigue syndrome and fibromyalgia, which had resulted in 62 days' continuous sickness absence and she was issued with a “written improvement warning” in accordance with the policy.
Griffiths raised a grievance, on the basis that as she was disabled, the employer was under a duty to make reasonable adjustments consisting of disregarding her 62-day absence period, thereby withdrawing the warning and increasing the number of days' absence that would activate the attendance policy in the future. The employer refused and Griffiths lodged a tribunal claim. The EAT agreed with the tribunal that Griffiths' claim for failure to make reasonable adjustments should be rejected.
First it was right that the provision criteria or practice (PCP) in this case, allegedly triggering the reasonable adjustment duty, was applying the attendance management policy which required attendance at work at a certain level in order to avoid receiving warnings and a possible dismissal.
Secondly, as to whether the duty to make reasonable adjustments arose, it has to be shown that the PCP puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled. So Griffiths, as a disabled person faced the same consequences as a disabled person if the policy was triggered meaning she cannot be at a disadvantage, let alone a “substantial” disadvantage.
Thirdly, although no duty arose, the adjustments sought by Griffiths would not have been reasonable because it would mean the employer having to disregard a long period of absence.
Employers should be very cautious about regarding this judgment as a green light for continuing to apply attendance trigger points across the board. If this case had been brought under the S.15, 'Discrimination arising from disability' provisions of the Equality Act 2010, would the result have been the same if Griffiths could show that she had been treated unfavourably because of something arising in consequence of her disability? If she could, then there is disability discrimination unless the employer can show that the treatment is justified in the circumstances. Decisions about how to treat an employee's absences resulting from a disability should be made taking all the surrounding circumstances into account.
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