Griffiths v DWP: Court of Appeal clarifies duty to make reasonable adjustments

Griffiths v DWP: Court of Appeal clarifies duty to make reasonable adjustments

Employment Law solicitor, Nathalie Stewart, takes a look back at the decision in Griffiths v The Secretary of State for Work and Pensions (DWP), and what it means for employers.

The background

Ms Griffiths was disabled under the Equality Act 2010 and had been absent from work at the DWP for 62 days.

This had triggered the absence management policy at the DWP, which triggered on the 8th day of absence in any 12-month rolling period.

The policy did state that this trigger point may be extended as a reasonable adjustment for a disabled employee.

Ms Griffiths was given a written warning and no extension of the trigger point. She made a claim for a failure to make reasonable adjustments.

Her argument was that either her entire absence should have been disregarded as a reasonable adjustment because her absence was exceptional. Or a reasonable adjustment would have been to apply a trigger point at 20 days absence rather than 8 days.

The Tribunal’s decision

The Employment Tribunal initially said that no duty of reasonable adjustments was engaged.

They said that the absence management policy of the DWP didn’t put her at a significant disadvantage due to her disability. Their main focus was that it applied to all employees.

The Court of Appeal's ruling

The Court of Appeal said this was wrong. There was a requirement to apply a reasonable adjustment when a disabled person has a disability that increases the likelihood that they would be absent from work.

An absence policy would place them at a significant disadvantage. So reasonable adjustments would be needed.

However, the Court of Appeal accepted that the Tribunal was right to find the adjustments put forward by Ms Griffiths were not reasonable.

Ms Griffiths’s condition was not a one-off and the medical evidence showed there were likely to be future length absences.

The Court of Appeal agreed that to ignore all these absences went beyond what was reasonable.

Also, the adjustment that the trigger point should be increased to 20 days from 8 days couldn’t be justified as it was too arbitrary.

There was no reason why 20 days’ absence would be reasonable but 21 days wouldn’t be and so on.

In any case, given the length of Ms Griffiths’s absence, this wouldn’t have made a difference.

What this means for you

Where you have an absence policy that triggers disciplinary action once a certain level of absence is met, you have to consider reasonable adjustments for disabled employees.

The employees do have to be disabled and the absences that are due to disability are only those covered by the law regarding reasonable adjustments.

The Court of Appeal did give guidance that where an absence due to a disability was likely to be a one-off absence, or where the absences caused by the disability were relatively short, they might expect to see an employer apply a reasonable adjustment to their absence management policy to alleviate the disadvantage suffered by that employee.

The case is helpful in highlighting that, as an employer, you’re not required to ignore all absences including lengthy ones due to disability to meet your obligation to provide a reasonable adjustment.

However, it’s difficult to know from this case what would be reasonable in each and every scenario. As there can’t be a clear cut-off point in terms of the number of absences where a disability is involved.

You should take from this that you don’t have to dis-apply your absence management policy (or increase the trigger point) for disabled employees who are absent frequently and for lengthy periods of time.

Although you must, in each case of application of the absence management policy, consider issues of disability and reasonable adjustments. And ensure that any assumptions made about the disability and absences are backed up by medical evidence if sanctions are applied – certainly if the sanction is dismissal.

Need advice? Get in touch today

Please call Nathalie Stewart on 01482 324252.

Or email Nathalie here.

You can find out more about our Employment Law services here.

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