Griffiths v The Secretary Of State For Work And Pensions

An employer’s duty under section 20(3) of the Equality Act 2010 arises only where the application of a provision, criterion or practice puts the particular disabled employee at a substantial disadvantage compared with non-disabled persons. The tribunal must identify both the relevant practice and the comparative disadvantage.

An attendance policy which applies equally to all employees, while allowing disability-related flexibility, does not itself establish such disadvantage where the disabled employee is treated at least as well as a non-disabled employee with the same level of sickness absence. Proposed adjustments must also fall within the statutory purpose of avoiding the identified disadvantage and be reasonable on the facts.

The claimant, a disabled administrative officer, had a 62-day period of sickness absence caused by post-viral fatigue syndrome and fibromyalgia. Her employer issued a written improvement warning under its Attendance Policy.

She sought withdrawal of the warning by retrospectively disregarding the absence, and a higher future absence threshold for disability-related absences. The employer rejected both requests. An Employment Tribunal, by a majority, dismissed her claim for failure to make reasonable adjustments. It held that the policy had not placed her at a substantial disadvantage and that the requested adjustments were not reasonable.

The claimant appealed. The central issues were the proper identification of the provision, criterion or practice, whether the statutory duty had arisen, and, if so, whether the requested adjustments were reasonable.

1. Appeal dismissed. The Employment Tribunal correctly treated the relevant provision, criterion or practice as the application or operation of the Attendance Policy to this claimant. The claim was not one of indirect discrimination and could not be determined by considering the policy’s general effect on disabled employees.

2. The first requirement in section 20(3) of the Equality Act 2010 required the claimant to establish a substantial disadvantage, compared with persons who were not disabled. That inquiry required identification of the practice and of the precise comparative disadvantage which it created. Disadvantage was necessarily relative.

3. The majority tribunal had permissibly found that the claimant had not suffered the requisite disadvantage. The proper comparison was with a non-disabled employee absent through sickness for the same period but not through disability-related illness. The policy applied to all employees and its disability-specific discretion could operate to the benefit of disabled employees. A claimant treated at least as well as that comparator was not disadvantaged merely because she did not receive a further advantage.

4. The claimant’s reliance on the ECJ decision in Ring was misplaced. The passages relied on concerned matters transposed domestically as indirect discrimination, rather than the distinct reasonable-adjustments inquiry.

5. Although unnecessary to the result, the EAT would also have rejected the appeal on reasonableness. The proposed retrospective and continuing extensions concerned the treatment of absence from work, rather than steps enabling the claimant to return to work or carry out her work. They fell outside the statutory scope on the facts. In any event, the majority tribunal was entitled to find that neither proposed adjustment was reasonable.

• Employment Appeal Tribunal: dismissed the claimant’s appeal on 15 May 2014: [2014] UKEAT 0372_13_1505.
• Employment Tribunal: by a majority, dismissed the claim for failure to make reasonable adjustments in a judgment and reserved reasons delivered on 12 April 2013.