Hogan Lovells comments on disability discrimination ruling from the Court of Appeal

Hogan Lovells commented on today's ruling from the Court of Appeal in Griffiths v Secretary of State for Work and Pensions that it was not reasonable for the employer to make adjustments to an absence management policy that included "trigger points" for warnings.

Elizabeth Slattery, Head of Employment, Hogan Lovells, said:
"Employers will welcome the fact that the Court of Appeal has taken a pragmatic view of what can be expected of them in terms of reasonable adjustments to sickness absence procedures.

"However, this does not mean that employers can simply apply existing procedures to employees who have intermittent disability related absence. The Court rejected the argument, successful in the EAT, that the duty to make reasonable adjustments simply did not arise, and endorsed the view that applying absence management policies could lead to claims that employees have been treated unfavourably because of something "arising from" their disability.

"The employee in this case could have argued that she had received the warning because of absences that arose from her disability. The employer would then have to objectively justify the treatment – in this case giving the employee a warning – which may in practice be difficult. The decision in Griffiths does not remove the legal complexities surrounding absence management for employees with disabilities."

The claimant in Griffiths v Secretary of State for Work and Pension, who was disabled within the meaning of the Equality Act, had 62 days' absence for post-viral fatigue.  Under the employer's absence management procedure, an employee could be issued with a formal warning if their absence level exceeded eight days in any rolling 12 month period.  Although the policy provided that the trigger point could be flexed for disabled employees, no such adjustment was made for the claimant and she received a written warning.  She complained that the employer had failed to make reasonable adjustments.

The EAT and tribunal had decided that the absence management policy did not place the claimant at a substantial disadvantage; the claimant had been treated in the same way as a non-disabled employee absent for the same length of time.  There was therefore no duty to make reasonable adjustments. Although the Court of Appeal has dismissed the claimant's appeal, it did so for very different reasons – the duty to make adjustments did arise but the employer could not in this case reasonably be expected to write off an extended period of absence. This was not a one-off condition; further periods of potentially lengthy absence would be likely.

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