Employer Not Required to Make Adjustments to Absence Management Policy

An employer’s failure to ignore a period of disability-related absence and to extend the trigger point for action under its absence management policy did not breach the duty to make reasonable adjustments.

Speedread 

An employer was not obliged to ignore a period of disability-related absence or to extend the trigger point for action under its absence management policy. These adjustments were not reasonable in the circumstances of this case where the absence had been lengthy and further lengthy periods of absence were likely to arise. The employer had not therefore breached its duty to make reasonable adjustments.

Facts

In Griffiths v The Secretary of State for Work and Pensions, the DWP’s absence management policy provided for action to be taken once an employee was off work for eight working days in any 12 month period. The policy provided that the trigger point could be extended as a reasonable adjustment for disabled employees and that a period of absence could be ignored in exceptional circumstances. 

Ms Griffiths was off work sick for 62 days suffering from post-viral fatigue and fibromyalgia. She was issued with a written warning. She raised a grievance which was rejected and she then brought an employment tribunal claim alleging that her employer had breached its duty to make reasonable adjustments. She argued that her employer should have:

• Ignored the 65 days’ absence and revoked the written warning; and
• Extended the absence trigger point to 20 days for future absences. 

Decision

The Court of Appeal ruled that the requirement to maintain a certain level of attendance in order to avoid the risk of a disciplinary sanction placed Miss Griffiths at a substantial disadvantage. The employer was therefore under a duty to make reasonable adjustments. However the employment tribunal had been entitled to find that the adjustments which she was seeking were not reasonable. 

It was not reasonable to expect the employer to ignore the 65 days absence and revoke the written warning. This was not a one-off condition and further periods of lengthy absence were likely to arise. The absence was also eight times longer than the period permitted before action could be taken. Nor was it reasonable to expect the employer to extend the absence trigger in this particular case. Where further lengthy periods of absence are anticipated, the length by which the trigger point should be extended becomes arbitrary. A relatively short extension is of limited value as it does not remove the disadvantage if the absences remain at over 20 days. 

Implications

Although the adjustments contended for were found not to be reasonable on these particular facts, this will not always be the case. Where a disabled employee is likely to have occasional short periods of absence, an extension of the absence trigger point may be a reasonable adjustment for an employer to make. Likewise, there may well be circumstances where an employment tribunal would consider that a period of absence for a new condition should be ignored, at least whilst the condition is being diagnosed and a treatment plan drawn up. 

Employers dealing with disability-related absences should always consider whether there are any reasonable adjustments they can make. In addition, action taken by an employer under its absence management policy, such as the imposition of a warning, may constitute unfavourable treatment for a reason relating to disability, giving rise to a claim for discrimination arising from disability. Employers would then have to justify the treatment.