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Court of Appeal case: Employer didn’t have to adjust its absence management policy for disabled employee

The Background

An employer has a duty to make reasonable adjustments where it knows (or ought to know) that a person has a disability. Failure to make a reasonable adjustment can amount to discrimination. The recent case of Griffiths v Secretary of State for Work and Pension highlighted that an employer does have to adjust its absence management policy for the benefit of a disabled person, however any decision needs to be objectively justified.

The Facts

Ms Griffiths, an administrative officer, had worked for the Department for Work and Pensions for 35 years. She was classed as disabled within the meaning of the Equality Act 2010 and she had a period of 62 days’ absence. Under the employer’s absence management procedure this particular absence could result in a formal warning being issued. Although the policy provided that the trigger point for formal action could be flexed for disabled employees, no such adjustment was made for Mrs Griffiths. She received a written warning. Ms Griffiths complained that the employer had failed to comply with its obligations to make reasonable adjustments.

The Court of Appeal

The claim was initially dismissed at Tribunal and at the Employment Appeal Tribunal on the basis no obligation to make adjustments arose.

However, the Court of Appeal held that 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 or delay trigger points. The Court of Appeal also stated that this was not a one-off condition and further periods of potentially lengthy absence would be likely. The Court did concede that in different circumstances, for example shorter periods of absence, that such an adjustment may be reasonable.

This case is a reminder for employers that the duty to make reasonable adjustments may well still apply when considering the application of an absence management policy.  However, the situation and the specific nature of the absence should be carefully considered when making a decision on whether to make adjustments or not.

Judgement

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