In Griffiths v Department for Work and Pensions, the employee (Griffiths) had a high level of absence level (62 days) due to fibromyalgia. The sickness absence procedure adopted by the employer, which already allowed for adjustments for disabled employees, meant that Griffiths was given an improvement warning.

She subsequently claimed disability discrimination, saying that the procedure should allow for a higher number of absences before formal action is taken where a disability is involved. The Employment Appeal Tribunal found that Griffiths was not placed at a disadvantage because the company procedure was applied equally to all employees so a non-disabled person would be treated in the same way in as a disabled person.

It was also decided that the adjustments suggested by Griffiths would mean continually and indefinitely extending the absence periods permitted by the absence policy before action was taken for disabled employees. This is against the fundamental point of reasonable adjustments, which is to get the employee back into work, not to enable them to be absent for longer.

Griffiths appealed for a second and the case was heard by the Court of Appeal. Their judgment, which is hoped to provide greater clarity in this area, is expected imminently.