Posted by Gemma Ospedale, Partner
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Disability Discrimination – Reasonable Adjustments Made Easier
In a recent judgment, the Court of Appeal has eased the path of employees in showing that a duty to make reasonable adjustments arises where a provision, criterion or practice (a PCP) puts a disabled person at a substantial disadvantage compared to a non-disabled person. The employee appealed against the decision of the Employment Appeal Tribunal (EAT) that there had been no breach of the duty to make reasonable adjustments for her disability under the Equality Act. While the appeal ultimately failed, the judgment now makes demonstrating that the duty arises much easier for potential claimants.
Ms Griffiths commenced employment with the Respondent in 1976 and in 2009 started experiencing symptoms subsequently diagnosed as post viral fatigue and fibromyalgia. She was given a formal written improvement warning in May 2011 following an absence of 66 days, 62 of which were due to illness arising from her disability (which was not contested).
Her grievance and appeal that her disabled status required her employer to make reasonable adjustments failed, and so she issued proceedings in the Employment Tribunal alleging that the failure to make the adjustments requested was a breach of the duty to make reasonable adjustments which, she claimed, had arisen as a result of a PCP (the sickness absence policy) putting her, as a disabled person, at a substantial disadvantage compared to non- disabled people. The claim failed; and the EAT upheld the Tribunal decision that no duty to make the adjustments had arisen and that anyway it would not have been reasonable to expect the employer to make them.
Sickness Absence Policy – the PCP
The sickness absence policy allowed 8 days absence in any rolling 12 months which, when reached, triggered formal action being taken under absence management. Unusually, the level could be increased as a reasonable adjustment if a person was disabled. The policy also specified that there was a duty to make reasonable adjustments where appropriate, which included allowing a reasonable amount of additional sickness absence where this was disability-related, before the trigger point was reached (agreed on a case by case basis). The purpose of increasing the limit was to remove any disadvantage which disabled employees may suffer by being expected to have the same attendance level as non-disabled employees; and to remove uncertainty about the possible consequences of sickness absence as a result of disability. Absences over 8 days unrelated to disability would trigger formal action being taken.
The adjustments requested were, firstly, that the improvement warning given for the 62 days disability related absence should be ignored because the warning had been given because of her disability and at a time when she was first diagnosed and a treatment plan commenced (indicating that, going forward, it was likely her absences would reduce). Secondly that the 8 days trigger point should be increased to allow her longer periods of disability-related absence without triggering the commencement of formal sanctions. Ms Griffiths did not complain about the policy itself, because this expressly provided for adjustments for disabled people; her complaint was about its application to her.
When Does the Duty Arise?
The duty to make reasonable adjustments arises where a PCP puts disabled people at a substantial disadvantage compared with non-disabled. The Secretary of State argued that the policy treated everyone the same and so no duty arose. The majority of the Tribunal, and the EAT, accepted this; they both took the view that the employee could not establish the substantial disadvantage required for the duty to arise because a non-disabled employee who was off sick for the same amount of time as the disabled employee would be treated no differently.
The minority member of the Tribunal considered that the absence policy did place the employee at a substantial disadvantage because, although the policy applied to disabled and non-disabled alike, disabled employees were more likely than non-disabled to have higher levels of sickness absence, so would be more likely to tip the trigger for formal warnings.
The Court of Appeal agreed – and held that the EAT had been wrong. Even though, on the face of it, the policy treated disabled and non-disabled people equally, there will be a disadvantage if the PCP hits the disabled person harder than the non-disabled. The substantial disadvantage is the fact that the disabled person is likely to reach the level of absence triggering formal action far quicker than the non-disabled. As such the duty to make adjustments would arise, requiring the employer to look at the steps which it is reasonable to take to ameliorate the disadvantage.
The Court looked at a previous case dealing with the applicability of sick pay where a disabled person was absent long term and her entitlement to company sick pay expired. There, the employee, whose sickness absence levels were high due to her disability, asserted that the sick pay rules placed her at a substantial disadvantage because she used up her sick leave/pay entitlement far quicker due to her disability than non-disabled employees. She argued, either that her disability related absences should be disregarded for pay purposes, or that she should receive full pay for all disability related absences.
The employer argued that there was no disadvantage to disabled people since the policy was applied in exactly the same way to disabled as non-disabled. The Court disagreed, saying that it was not enough to simply say that the rules apply to everyone equally, because disabled people may be disadvantaged by the application of the policy (the PCP); and that employers may have to treat a disabled employee more favourably to alleviate the disadvantages suffered by them in the application of the policy concerned.
The Judges in Ms Griffith’s case came to the same conclusion – that the duty to make reasonable adjustments was engaged because, although the policy applied equally to everyone, its application placed disabled employees at a substantial disadvantage.
Reasonableness of Proposed Adjustments
The Court then moved on to consider what constituted reasonable adjustments. It looked at the sick pay case which had decided that, although the policy did constitute a substantial disadvantage (so triggering the reasonable adjustments duty), increasing the period during which the disabled employee could claim sick pay was not a reasonable step for the employer to take – and the claim failed. The reason was because the employee asserted that she was experiencing considerable financial hardship, so if the employer had to consider extending sick pay for long term absent disabled employees, it would need to analyse each employee’s financial situation to determine by how much to increase the sick pay allowance; which, the Court thought, was an unreasonable burden.
Interestingly, in Griffiths, the employee was not asking for all disability related absences to be ignored for the purposes of whether a warning was given; she was only asking for an increase in the trigger point to ameliorate the worry of being subjected to formal action if she tipped it. However, the Court found that, given the history of her absences and likely future lengthy ones, this objective would only be achieved if all disability-related illnesses were ignored, because an increased trigger point would still be tipped (calling into question the effectiveness of the adjustment at all).
The only way Ms Griffith’s objective could be achieved was if all disability related absences were ignored – which was not the adjustment requested. As with the sick pay, deciding the length of extension to the trigger point meant the employer having to assess the amount of worry, stress and anxiety the individual would suffer if they exceeded a revised trigger point – and again this would be invidious and inevitably very subjective. Consequently, extending the policy was not an adjustment which was considered reasonable for the employer to make.
As for the requested adjustment to ignore the disciplinary sanction for excessive absence the Court said that the reasonable adjustments duty looks at ameliorating a difficulty for the employee going forward; not looking backwards at something which has already happened.
While the duty to make adjustments did arise, the employee ultimately failed because the proposed adjustments were not steps which the employer could reasonably have been expected to take.
So while it is now easier for claimants to assert that a duty to make reasonable adjustments arises because the focus is on the effect of a PCP to them in particular and not compared to a non-disabled person, employers have to look carefully at whether the proposed adjustments are actually reasonable. In this case, as in the sick pay case, they were not; and so the employee failed.
Case: Griffiths v Secretary of State for Work and Pensions – Court of Appeal 10th December 2015
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