Griffiths v Department for Work and Pensions

The Employment Appeal Tribunal (EAT) has indicated that disabled employees may not succeed with a claim for failure to make reasonable adjustments in relation to trigger points contained within a sickness absence procedure where their absence is due to their disability.

Ms Griffiths had worked as an Administrative Officer for the Respondent, the Department for Work and Pensions since September 1976. The Respondent had a detailed absence policy which stated that procedures would be instigated in relation to an employee when they reached “the Consideration Point” of eight working days of sickness within twelve months. The policy stated that the Consideration Point would be reasonably adjusted for disabled employees, after which the company’s Attendance Policy would begin and this could result in formal action against the employee.

Ms Griffiths was absent for 62 days between February 2011 and May 2011, during which time she was diagnosed as suffering from “post-viral fatigue” and a later occupational health assessment also diagnosed her as having fibromyalgia, a condition causing pain and tiredness, which falls under the definition of disabled in the Equality Act 2010.

Ms Griffith’s absence prompted a ‘written improvement warning’ under the Attendance Policy which stated that future absences could result in consequences including dismissal. She lodged a grievance, requesting that the Respondent make two reasonable adjustments; one to erase the absence period to result in the warning being rescinded and secondly that the number of days before the Consideration Point to be increased for future illnesses. The adjustment requests and a subsequent appeal were refused and Ms Griffiths lodged a claim with the Employment Tribunal for a failure to make reasonable adjustments.

The tribunal focused on whether the application of the Attendance Policy put the claimant at a substantial disadvantage so as to give rise to a duty on the employer to make a reasonable adjustment. The majority of the tribunal found that the claimant had not been placed at a substantial disadvantage because the policy applied to all, disabled and non-disabled people. It found that the adjustment option was available only to the disabled therefore they were at an advantage and treated as well as the non-disabled employees within the workplace, who could not have their consideration points extended. The majority within the tribunal also concluded that the adjustment went beyond what was to be regarded as ‘reasonable’ as they concluded she was asking for an increase of the consideration point to around 62 days and a future indefinite increase.

On appeal, the EAT deduced that the comparator required for the substantial disadvantage point was a non-disabled person who had the same absence period for non-disability-related sickness. They found that Griffiths had been treated as well as a hypothetical comparator so would not be placed at a ‘substantial disadvantage’ and rejected the appeal on this point. On the reasonable adjustments point, the EAT stated that had it been required to make a determination, it would have found that the adjustments requested by Griffiths were not reasonable. It agreed with the argument put forward that the statutory objective of reasonable adjustments is to get people back to work rather than facilitating absence.