Absence management & reasonable adjustments
It’s not unusual for employers to set attendance targets that if the employee doesn’t meet may result in sanctions including dismissal. However will the employer be under a duty to adjust these targets for disabled employees?
Andrew Macmillan, considers the extent of the duty to make reasonable adjustments in light of the recent case of Griffith v Secretary of State for Work & Pensions.
Ms Griffith suffered from post viral fatigue syndrome and fibromyalgia. She had lengthy periods off work which triggered a written warning. She asked for two adjustments to be made. Firstly, to disregard the 62 day absence which led to the warning and secondly to increase the number of days' absence that would trigger further action.
When the requests were refused, Ms Griffiths took her claim to an Employment Tribunal but lost.
However employers should be wary of treating this case as ridding them of any responsibility to make adjustments when dealing with a disabled employee’s absence record.
The absence management policy in this case was found not to place Ms Griffiths at a substantial disadvantage.
This was because the policy applied to all employees whether disabled or not. This meant that a non-disabled employee who had been absent from work for the same amount of time would have been treated the same way as Ms Griffith.
As the application of the employer’s absence management policy did not place the employee at a substantial disadvantage the duty to make reasonable adjustments did not arise.
It was also significant that the absence management policy made express provision for disabled employees. This included allowing different triggers points being agreed for disabled employees on a case by case basis. If it had not, the outcome may have been different.
In addition, Ms Griffiths had brought her claim on the basis that there had been a failure to make a reasonable adjustment. If the claim had been brought on the basis of “indirect discrimination” or “discrimination arising from disability” the outcome may well have been different. This is because these claims often mean an employer has to defend their decision on the grounds that their actions were ‘justified’ .
As a result, employers will still need well worded policies and should carefully consider an absent individual’s circumstances before taking action. However this case also reiterates that an employer will not be in breach of the law if it does not accede to every request for an adjustment. It has to be remembered that the purpose of reasonable adjustments is to enable an employee to return to work or carry out their work rather than just facilitate their absence from work.
Andrew Macmillan is a partner in the employment team at law firm Gateley LLP. You can contact Andrew on 0115 983 8242 or at firstname.lastname@example.org