Case law: Employer with policy penalising sickness-related absence must make 'reasonable adjustments' for disabled employee
Employers whose policies allow them to take disciplinary action if an employee is away from work for a certain period will normally be indirectly discriminating against disabled employees and must consider making reasonable adjustments, a recent ruling clarifies.
This update was published in Legal Alert - March 2016
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An employee was off sick for 62 days. The cause was found to be post viral fatigue and this meant she was disabled. Under her employer's attendance policy, the employer could issue warnings and impose other disciplinary sanctions once certain periods of absence had been reached. The employee had reached one such a 'trigger point' and was put on a written warning.
The law says that where an employer operates a provision, criterion or practice ('PCP') which puts disabled employees at a substantial disadvantage compared to their non-disabled employees, it is indirect discrimination. The employer is required by law to make 'reasonable adjustments' so a disabled employee is not disadvantaged.
The employee claimed the employer should make two adjustments. One was that her absence due to her disability be disregarded and her warning withdrawn. The other was that the attendance policy should be extended for her in the future.
The Court of Appeal agreed that the employer's requirement for an employee to be at work for a particular number of days or face disciplinary proceedings was a PCP which put her at a substantial disadvantage compared to able-bodied employees. The employer was therefore under a duty to consider making 'reasonable adjustments'.
However, the Court went on to say that the adjustments the employee had asked for were not reasonable. The purpose of the reasonable adjustment rules was to enable disabled employees to carry out their work, or return to work after an absence caused by their disability. The adjustments sought by the employee were not to do with her return to work, but how her absence from work due to her disability should be treated.
- Employers whose attendance (or sickness absence) policies allow them to take disciplinary action if an employee is away from work for a certain period will normally be indirect discrimination against disabled employees and must consider making reasonable adjustments
Case ref: Griffiths v The Secretary of State for Work and Pensions  EWCA Civ 1265
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