December 31, 2015

Duty to Make Reasonable Adjustments Can Apply to Attendance Management Policy

In Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265, the Court of Appeal considered whether the duty to make reasonable adjustments under U.K. discrimination law could apply to an attendance management policy.

Ms Griffiths was an administrative assistant for the U.K.'s Department for Work and Pensions (DWP). Following an absence from work relating to her disability, the DWP instigated its attendance management policy and issued her with a written warning. She brought proceedings against the DWP claiming that it had failed in its duty to make reasonable adjustments for her as a disabled employee by refusing to (i) disregard her disability related absence for the purposes of the attendance management policy, and (ii) extend the number of days' absence constituting the "trigger" for issuing a warning under this policy.

The Court of Appeal held that the Employment Appeal Tribunal had been wrong to find that the duty to make reasonable adjustments did not apply to the attendance management policy because it applied equally to employees of the DWP. The Court confirmed that the duty will apply to such a policy if, as was the case here, an employee's disability makes them more likely to be absent from work than a non-disabled employee, thereby placing the disabled employee at a substantial disadvantage.

The next question for the Court was whether the adjustments being requested by Ms Griffiths were reasonable in all the circumstances. The Court found they were not, mainly because it was not reasonable to expect an employer to disregard an extended period of absence for the purpose of an attendance management policy, and there was no obvious period by which the trigger point should be extended.

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