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The Management of Disability-Related Absence in the Post-Griffiths Landscape

Daniel Northall comments on the management of
disability-related sickness absence.

The management of disability-related sickness absence is a perennial source of anxiety for
employment lawyers, managers, human resources professionals, trade union representatives
and employees. What does the law require when an employee is thrust into
absence management procedures by virtue of absences caused by a disabling
condition? How much leeway should be requested or granted? How should such a
claim be analysed by the time it arrives at an employment tribunal?

For a number of years,
it was thought that the pendulum had swung in favour of the employer following
decisions of the EAT in Royal Bank of Scotland v
Ashton
[2011] ICR 632 and Griffiths v Secretary of State
for Work and Pensions 
(2014) UKEAT/0372/13: the
application of an absence management procedure did not disadvantage disabled
employees any more than non-disabled employees. Therefore, the duty to make
reasonable adjustments did not arise at all.

The EAT’s
decision in Griffiths was appealed to
the Court of Appeal. Its judgment is important, above all for explaining that
the management and litigation of disability-related absence turns on proper analysis, not on some employer or
employee bias inherent in the legislation.

The Facts

The facts
of Griffiths will be familiar to
anyone who has been involved in the management of disability-related absence.

In
October 2009, Mrs Griffiths began to experience symptoms of conditions that
were later diagnosed as post viral fatigue and fibromyalgia. The DWP accepted
that these conditions amounted to a disability. She was absent from work for a
period of 66 days, 62 of which were as a result of her disability and she was
given a formal written improvement warning in May 2011 under the DWP’s absence
management procedures.

Mrs
Griffiths raised a grievance requesting two adjustments: the first was the
discounting of the absence as disability-related. This would result in the
withdrawal of the written warning. The second was the modification of the
absence management procedure so that the ‘Consideration Point’ in her
individual case would be extended from 8 days to 20 days.

Mrs
Griffiths’ grievance was rejected and she brought a claim alleging disability
discrimination in the employment tribunal. Significantly, her only claim was
for a failure to make reasonable adjustment pursuant to s.20 of the Equality
Act 2010. She did not bring a claim of discrimination arising from disability
pursuant to s.15.

A
majority of the employment tribunal dismissed Mrs Griffiths’ claims on the
grounds that no duty to make reasonable adjustments arose (relying heavily on
the EAT decision in Ashton) and that
it had not been reasonable to make the proposed adjustments in any event. The
EAT upheld the majority of the tribunal on both grounds, and added that the
adjustments sought could not amount to ‘steps’ for the purpose of s.20.

Decision of the Court of Appeal

The Court
of Appeal (Elias LJ giving the only reasoned judgment) effectively overruled Ashton, for two reasons.

Firstly,
the relevant PCP in Ashton had been
misidentified. (Elias LJ declined to comment on whether that was a consequence
of the way the claim had been put on behalf of the claimant or because of the
EAT’s analysis). The PCP in Ashton was described as the general absence management policy itself. The Court of
Appeal described as ‘inevitable’ the conclusion that such a policy would not per se disadvantage disabled employees,
especially where the policy allowed for special consideration to be made for
disabled employees, regardless of whether that discretion was exercised by the
employer. Further, restricting the PCP to the absence management policy itself
did not recognise why an absence management policy might adversely affect
disabled employees in certain circumstances.

The
correct PCP should focus not on the policy, but rather on the employer’s
requirements for consistent attendance at work, which was described by the
Court of Appeal as “the provision breach
of which may end in warnings and ultimately dismissal.”
The judgment went
on to state that: “Whilst it is no doubt
true that both disabled and able bodied alike will, to a greater or lesser
extent, suffer stress and anxiety if they are ill in circumstances which may
lead to disciplinary sanctions, the risk of this occurring is obviously greater
for that group of disabled workers whose disability results in more frequent,
and perhaps longer, absences. They will find it more difficult to comply with
the requirement relating to absenteeism and therefore will be disadvantaged by
it.”

The
second reason Ashton was overturned
concerned its reliance on the Malcolm-type
comparison between disabled and non-disabled employees. The potential
difference in approach to identifying the appropriate comparator is best
illustrated by a practical example first given by Mummery LJ in Clark v Novacold [1999] ICR 95 and which
was repeated by Elias LJ in his judgment in Griffiths.
It concerns a blind man who wishes to take his guide dog into a restaurant
which has a “no dogs” rule:

Should the comparison be with an able-bodied
man who wished to take his dog into the restaurant? If so, there would be no less favourable
treatment because all are treated the same. The able bodied man too would be
refused entry for the same reason, namely that he wished to take his dog into
the restaurant. Or should the comparison
be with an able-bodied man who did not need to take a dog into the restaurant
and would not therefore be excluded?”

Both the
House of Lords in Malcolm and the EAT
in Ashton adopted the former
analysis. Elias LJ thought that this was an inappropriate comparison for the
purpose of s.20 EqA. The language of s.20 EqA was very different and plainly
spells out an approach requiring a comparison between the claimant and
non-disabled persons. “The fact that they
are treated equally and may both be subject to the same disadvantage when
absent for the same period of time does not eliminate the disadvantage if the
PCP bites harder on the disabled, or a category of them, than it does on the
able bodied.”

In an
important passage, Elias LJ went on to remark that the need for a comparison
within s.20 was not rendered completely redundant by his approach: “Of course, if the particular form of
disability means that the disabled employee is no more likely to be absent than
a non-disabled colleague, there is no disadvantage arising out of the
disability. But if the disability leads to disability-related absences which
would not be the case with the able-bodied, then there is a substantial
disadvantage suffered by that category of disabled employees.”

The Court
of Appeal next turned to the issue of the reasonableness of the adjustments
proposed by Mrs Griffiths, namely discounting her disability related absence
and extending the Consideration Point in the future application of the policy.

The Court
of Appeal began its discussion with this note of caution: “I would accept that whilst a disabled employee may suffer disadvantages
not directly related to the ability to integrate him or her into employment,
the steps required to avoid or alleviate such disadvantages are not likely to
be steps which a reasonable employer can be expected to take.”

It went
on to find that there was no error in the tribunal’s approach to this issue and
its conclusions were open to it. Mrs Griffiths’ appeal was dismissed for this
reason alone.

Practical Consequences

A number
of points can be drawn out of the Court of Appeal’s decision which advisers of
both claimants and respondents in the employment tribunal should heed.

Firstly,
reasonable adjustments claims relying on the simple application of an absence
management procedure as the PCP should be avoided. They are arguably
misconceived and may result in a claimant being unable to demonstrate
substantial disadvantage in comparison with non-disabled employees. Reasonable
adjustments claims arising out of the management of disability-related absence
should instead plead the employer’s requirements for consistent attendance at
work as the (or one of the) PCP(s) applied. This was in fact an approach
foreshadowed by the EAT in General Dynamics Information Technology Ltd v
Carranza
[2015] ICR 169.

Secondly,
despite the distinct relaxing by the Court of Appeal of the comparison
undertaken as part of a reasonable adjustments claim, the exercise is not
entirely devoid of purpose. Take an example: an employee suffers from a
disabling condition which means that they have (or will) be absent from work
typically for a few days a year. If the employer can show that the employee’s
anticipated levels of absence are no more (or substantially no more) than the
levels of absence across the workforce at large, the employee may not be able
to show that they have been placed at a substantial disadvantage. This may
require an employer to produce statistical evidence of the average absence
levels across their workforce, but this ought to be a straightforward task.

Thirdly,
if the door to substantial disadvantage has been opened by the Court of Appeal
in Griffiths, the door to
reasonableness has been closed so that it is only slightly ajar. If a proposed
adjustment is not geared towards reintegrating the employee into employment, it
is unlikely that it is reasonable for the employer to make that adjustment.

Fourthly,
in cases concerning disability-related absence management, claimants who only
allege a failure to make reasonable adjustments do so at their peril. Elias LJ
in Griffiths spent considerable time
in the judgment setting out the various differences between direct
discrimination (s.13), discrimination arising from disability (s.15), indirect
discrimination (s.19) and the duty to make adjustments (s.20), in terms of what
must be demonstrated in order for each claim to succeed. Implicit within that
discussion was the belief that all of Mrs Griffiths’ difficulties with her
reasonable adjustments claim would have been eased or overcome if she had
alleged discrimination arising from disability pursuant to s.15. Since the
formal warning issued to her was obviously connected with her disability, it
would then have been for the employer to explain and justify that treatment. In
short, reasonable adjustments and s.15 claims should go hand in hand in
virtually all cases of alleged mismanagement of disability related absence.

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