Court of Appeal upholds duty to make reasonable adjustments

The Court of Appeal has held in Griffiths v Secretary of State for Work and Pensions that where an employee’s disability makes them more likely to be absent from work than non-disabled colleagues, the duty to make reasonable adjustments in s.20 Equality Act 2010 may be engaged.

Background

The case involved an employee who was given a written warning under her employer’s attendance policy after two short spells of disability related absence, followed by a long spell of non-disability related absence. Ms Griffiths raised a grievance over the fairness of the warning and sought two reasonable adjustments, to withdraw the warning in respect of her disability related absence, and to modify the policy in the future so that she could have longer periods of absence without sanction compared to a non-disabled employee.

When her grievance was rejected, Ms Griffiths brought a claim in the Employment Tribunal on the basis that there had been a failure to make reasonable adjustments under the Equality Act. The Employment Tribunal, and the EAT on appeal, rejected Ms Griffith’s claim on the basis that she had not been put to any substantial disadvantage in comparison to non-disabled employees and therefore the duty to make reasonable adjustments had not arisen. The reasoning was because the policy applied to all employees with the same level of absence, whether they were disabled or not, following an EAT decision in an earlier case of Royal Bank of Scotland v Ashton. The Court of Appeal disagreed and held that where an employee’s disability causes absence levels which a non-disabled employee is unlikely to have, the rules of an attendance management policy will put the disabled employee at a substantial disadvantage.

The difficulty with the Ashton decision was that it effectively abolished the duty to make reasonable adjustments. No duty could arise if the correct comparator was someone who would suffer the same practical effects as the disabled person (i.e. in this case the disabled and the able-bodied employees were treated the same on the basis of their length of absence). The Court of Appeal went on to hold that the employer must then consider if it is reasonable to adjust the rule of the policy in the particular circumstances. In the case of Ms Griffiths, the Court of Appeal found that the proposed adjustments were not reasonable.

Comment

This case highlights that the duty to make reasonable adjustments will usually be engaged in cases where a disabled employee has disability related absences which trigger the application of an absence policy. How reasonable those adjustments are, however, will depend upon the particular facts of the case. The Court of Appeal has also overturned the Ashton case and confirmed that the duty to make reasonable adjustments under s.20 Equality Act should not be abolished.

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