Griffiths v Secretary of State for Work and Pensions

The Court of Appeal held that the employer's attendance requirement (the Consideration Point in the Attendance Management Policy) was a provision, criterion or practice which could place a disabled employee at a substantial disadvantage for the purposes of section 20 of the Equality Act 2010. The court rejected the submission that a policy which on its face permits discretionary favourable treatment for disabled employees could never give rise to a duty to make reasonable adjustments.

However, the court also held that the particular adjustments sought by the claimant — (a) to discount a past continuous 62 day disability-related absence and revoke the written improvement warning and (b) to increase the Disabled Employee's Consideration Point — were, on the evidence, steps which the tribunal was entitled to find it was not reasonable to require the employer to take. The appeal was therefore dismissed.

Background and procedural history:

• The appellant, an administrative officer employed since 1976, developed post-viral fatigue and fibromyalgia and was treated as a disabled person. A 62 day continuous absence arising from that illness led to a written improvement warning under the respondent’s Attendance Management Policy.
• The appellant sought two reasonable adjustments under section 20 of the Equality Act 2010: (i) treat the 62 day absence as exceptional and revoke the written warning; and (ii) increase the consideration point so that longer disability-related absences would not trigger sanctions as quickly.
• Her grievance and internal appeal were rejected. She brought claims to the Employment Tribunal which by majority dismissed them. The Employment Appeal Tribunal (Recorder Luba QC) dismissed her appeal and held further that the adjustments sought were not "steps" within section 20. The appellant appealed to the Court of Appeal.

Issues before the Court of Appeal:

1. Whether the Employment Tribunal was right to conclude no substantial disadvantage arose so as to engage the section 20 duty;
2. Whether the proposed measures constituted "steps" within the meaning of section 20(3);
3. Whether the Employment Tribunal misunderstood the appellant’s case on reasonableness; and
4. Whether, on the evidence, the adjustments sought were reasonable.

Court's reasoning:

• The court held the correct formulation of the relevant PCP was the attendance requirement (a requirement to maintain a certain level of attendance to avoid warnings and possible dismissal). When so formulated, the PCP plainly put disabled employees whose disability causes recurrent or longer absences at a greater risk of disciplinary measures and therefore at a substantial disadvantage compared with non-disabled employees. Accordingly the section 20 duty can be engaged even where the policy on its face applies equally to all.
• The court rejected application of the Malcolm like-for-like comparator to the section 20 duty, distinguishing the different statutory language and purpose of the reasonable adjustments duty and explaining consistency with Archibald and authorities such as O'Hanlon and Ring/HK Danmark.
• The court accepted that a "step" for section 20 purposes can include modification or qualification of the PCP (including discounting disability-related absences or increasing the consideration point) and that the Policy itself contemplated such adjustments.
• On the facts the Employment Tribunal had been entitled to find the requested adjustments were not reasonable: the long absence was not reasonably characterised as a one-off such that discounting it was appropriate, and a modest extension of the consideration point would be arbitrary and of limited value given the likelihood of further lengthy absences. The court therefore dismissed the appeal on the ground that the tribunal’s conclusion on reasonableness was sustainable.

Other points: the court observed the artificiality of framing some complaints as section 20 claims when they challenge past treatment (which may be more naturally analysed under section 15), and noted that a finding that no reasonable adjustment was required does not preclude consideration of proportionality under section 15 at the time of dismissal or sanction.

Appeal dismissed. The Court of Appeal held that the employer's attendance requirement could engage the section 20 duty because it placed disabled employees who suffer disability-related absences at a substantial disadvantage, but the specific adjustments sought (discounting the long absence and materially increasing the consideration point) were, on the evidence, not reasonable steps the employer could be expected to take; therefore the Employment Tribunal's conclusion that the adjustments were not reasonable was sustainable.

Employment Tribunal (majority dismissed claimant's section 20 claim; minority would have upheld), Employment Appeal Tribunal (Recorder Luba QC) UKEAT/0372/13/JOJ dismissed the claimant's appeal and held additionally that the proposed adjustments were not "steps" within section 20; appeal to Court of Appeal [2015] EWCA Civ 1265 dismissed.