No Leniency For Disability Absence!

Is it a failure to make a reasonable adjustment to issue a warning to a disabled employee for excessive absence without leniency being applied to the threshold?

No, held the Court of Appeal on the facts of Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265.

This is an important case for employers managing disability-related absence and making decisions about whether to waive absence, extend absence thresholds, issue warnings for excessive absence, etc.

Ms Griffiths was employed as an Administrative Officer. She suffered from post-viral fatigue and fibromyalgia which her employer conceded was a disability. She had an absence of 66 days, 62 of which were caused by her disability. In accordance with its Attendance Management Policy, on her return to work after that period of absence Ms Griffiths was issued with a written improvement warning and informed that further unsatisfactory attendance could lead to more serious sanctions. The Policy provided that consideration would be given to taking formal action when there were absences exceeding 8 days within any rolling period of 12 months (which the Policy termed "the Consideration Point"). There was also provision that the threshold "may be increased as a reasonable adjustment if you are disabled".

A grievance was raised by Ms Griffiths who stated that two reasonable adjustments ought to have been made to mitigate the substantial disadvantage she suffered by the application of the Policy:

Given that the lengthy absence which gave rise to the written improvement warning was the result of her disability, the employer should not have treated that absence as counting against her under the Policy with the consequence that the written warning should be withdrawn. The Policy should be modified to allow her in future to have longer periods of illness absence (12 additional days) before she faced the risk of sanctions than would be permitted for employees not subject to disability-related illnesses. Ms Griffiths' request for these adjustments was refused. She then lodged an Employment Tribunal (ET) claim, complaining of a failure to make these reasonable adjustments.

The ET and Employment Appeal Tribunal (EAT) both held that the duty to make reasonable adjustments was not engaged because the Policy applied equally to all (disabled and non-disabled employees) and made provision for reasonable adjustments for disabled employees. In any event, they held that there was no requirement...