The Court of Appeal has recently provided welcome clarity on what reasonable adjustments might need to be made to the implementation of sickness absence policies when dealing with disabled employees.
Under section 20 of the Equality Act 2010 (the Act) employers are required to make “reasonable adjustments” in order to alleviate disadvantage suffered by disabled employees and workers, with a view to allowing them to remain in employment.
Griffiths v The Secretary for Work and Pensions
Just before Christmas the Court of Appeal considered the raft of seemingly conflicting case law about how employers should deal with disability-related sickness absence that has come out during the last few years.
Although Griffiths may seem like bad news for employers, it does at least provide clarity and helpful guidance on what employers should be doing.
Ms Griffiths, an administrative assistant of nearly 40 years’ service, brought a claim after her employer refused to disregard 62 days of her disability-related absence from work, and also give her a cushion of 12 extra days’ disability related sickness than her non-disabled colleagues, before sanctions under the sickness absence policy would be triggered.
The Employment Tribunal and Employment Appeal Tribunal (EAT) rejected her claims saying that disabled people were no more disadvantaged by the operation of the policy than their non-disabled colleagues. The Court of Appeal has overturned that decision, saying that the effect of the policy would have a greater impact on disabled employees. However, the Court of Appeal upheld the lower tribunals decision overall, saying that the adjustments sought by Ms Griffiths were not reasonable.
In Royal Bank of Scotland v Ashton in 2010 the EAT said that disabled employees were not disadvantaged by a policy of not making an adjustment to the number of days absence a disabled employee could have before implementing their sickness absence policy and issuing formal improvement notices. The rationale for that was that disabled employees were merely treated in exactly the same way as non-disabled employees. The Court of Appeal had short-shrift with that position and has clarified that the question to be asked is whether disabled employees are put at a substantial disadvantage compared to non-disabled employees. The Court went on:
“..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. Thereafter the whole purpose of the section 20 duty is to require the employer to take such steps as may be reasonable, treating the disabled differently than the non-disabled would be treated, in order to remove the disadvantage. The fact that the able bodied are also to some extent disadvantaged by the rule is irrelevant.”
This makes it clear that it will potentially be a reasonable adjustment for an employer to allow disabled workers longer periods of absence, when dealing with disability related absence, before taking disciplinary action against them. It will still be open to employers to argue that the adjustment they are being asked to make goes beyond what is “reasonable”. Indeed, in this case the Court of Appeal found that the adjustments were not reasonable.
However, the Court of Appeal also reminded employers of their obligations under section 15 of the Act. This section makes it unlawful to discriminate against disabled employees for a reason arising from their disability. In broad terms this means that if an employee was dismissed because of their absence from work due to disability-related sickness, then that dismissal could potentially be a breach of section 15. This could be the case even where an employer is able to show that proposed adjustments to the implementation of their sickness absence policy go beyond what is “reasonable”, as it may not still be proportionate to dismiss the employee in all the circumstances.
The Court of Appeal also observed that it is unfortunate that absence polices often use language such as “warnings” and “sanctions” which makes them sound disciplinary in nature and suggest that the employee’s absence is their own fault. In cases of genuine sickness absence this would not be the case. It is advisable for employers to review their sickness absence policies with a view to replacing this sort of language with more sympathetic wording.
In our experience dealing with disabled employees (or potentially disabled employees) who are on long term sick leave can be one of the most difficult issues for employers to navigate. This case reconfirms that the burden on employers in this situation is a high one. With potentially uncapped damages in claims of discrimination, this is an area where we urge all employers to take legal advice if they are unsure of their obligations.
Claire Lawry is a paralegal and based in the employment team in Exeter. If you would like to contact Claire with regards to the content in this article, then please call 01392 210700 or email firstname.lastname@example.org.