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4 January 2016 0 Comments
Posted in Employment, Opinion

Abolition of duty to make reasonable adjustments?

Author headshot image Posted by , Partner

In Griffiths v Secretary of State for Work and Pensions the Court of Appeal looked at whether the duty to make reasonable adjustments under section 20 of the Equality Act should be abolished. It held that it should not.

The Appellant was an administrative officer suffering from post-viral fatigue and fibromyalgia. Her employer issued her with a warning following a 66 day absence from work which was mostly due to her disability. She asked the employer to withdraw the warning and to amend the policy for the future so that she could have longer periods of absence without risk of a disciplinary warning, than would be allowed for a non-disabled employee. The employer refused and the Appellant complained of a failure to make reasonable adjustments under the Equality Act.

The PCP on which the Claimant relied was “a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal”.

The Employment Tribunal and the EAT found themselves bound by a decision of the EAT in Royal Bank of Scotland v Ashton which resulted in them holding that the PCP did not put the Appellant at a disadvantage compared with those who are not disabled because a non-disabled employee who was absent for a similar period would have been subject to the same process; hence no section 20 duty arose. The problem with this decision was that it abolished the duty to make reasonable adjustments in one fell swoop. If the correct comparator is someone on whom the practical effects of a PCP are the same as they are on a disabled person, no section 20 duty can ever arise. Consequently the Court of Appeal dismissed the appeal and has finally got around the difficulty of the Ashton decision.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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