In the case of Griffiths v the Secretary of State for Work and Pensions, the Court of Appeal has clarified that an employer is under a duty to make reasonable adjustments when issuing disciplinary warnings for sickness absence, including making adjustments to its absence management policy which it applies equally to all staff.
In this decision, the Court of Appeal overturned the earlier decisions of the Employment Tribunal and the Employment Appeal Tribunal, that as the absence management policy was applied to disabled and non-disabled staff equally, it was not capable of placing a disabled employee at a substantial disadvantage, and that therefore there was no duty to make reasonable adjustments to that policy. The Court of Appeal clarified that the duty to make reasonable adjustments goes beyond equal treatment and requires employers to take positive steps to alleviate any substantial disadvantage that a disabled employee is placed at, on a case by case basis.
As ever, the duty is only to make reasonable adjustments, and in the particular circumstances of this case, the Court of Appeal found that extending the point at which disciplinary action could be taken under the policy, and/or disregarding periods of sickness absence when deciding whether to take disciplinary action under the policy, were not reasonable. This was because the employee in question had taken extended periods of absence for a variety of different ill-health conditions, and was likely to continue to do so going forward. In those circumstances, it was not reasonable to expect the employer to completely disregard that level of absence and further, making the adjustments by delaying the decision to take disciplinary action was, in any event, unlikely to alleviate the disadvantage claimed.
However, a different decision may have been reached in the case of an employee with a discreet condition who had taken a one-off period of absence and employers should be cautious when taking disciplinary action against a disabled employee; they should consider the specific disadvantage that the disabled employee may be put to, and not blindly rely on a sickness absence policy applied generally to all staff.
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