Griffiths v The Secretary of State for Work And Pensions

An attendance requirement places disabled employees at a substantial disadvantage where their disability makes absence more likely. Equal application to disabled and non-disabled employees does not prevent the reasonable-adjustments duty from arising.

A potential adjustment includes any modification or qualification of the relevant provision, criterion or practice which would or might remove the disadvantage. Whether it is reasonable is an objective, fact-sensitive question. An employer need not disregard a lengthy disability-related absence or adopt an arbitrary extension of an absence threshold where the adjustment would have limited practical effect.

A disabled administrative officer received a written improvement warning after a lengthy absence, most of which resulted from post-viral fatigue and fibromyalgia. She asked the employer to disregard that absence and to extend the attendance threshold before future formal action.

The Employment Tribunal majority dismissed her claim under section 20 of the Equality Act 2010. It found that the attendance policy caused no comparative disadvantage and that the proposed adjustments were unreasonable. The Employment Appeal Tribunal, UKEAT/0372/13/JOJ, upheld those conclusions and additionally decided that the proposals were not statutory “steps”.

The appeal concerned whether the duty arose, whether the proposals were capable of being steps, whether the Tribunal understood the case, and whether its reasonableness findings were sustainable.

1. Appeal dismissed. The Tribunal was entitled to find that neither proposed adjustment was a step which the employer could reasonably be expected to take.
2. The section 20 duty was nevertheless engaged. The relevant provision, criterion or practice was the requirement to maintain a specified attendance level to avoid warnings and possible dismissal. A disability which increases the likelihood of absence makes compliance more difficult and exposes the employee to a greater risk of sanctions. That is a substantial disadvantage even though the attendance rule applies equally to everyone. The reasoning to the contrary in Royal Bank of Scotland v Ashton was erroneous.
3. The comparison adopted for disability-related discrimination under the former legislation in Lewisham London Borough Council v Malcolm did not govern the reasonable-adjustments duty. Section 20 asks whether the provision, criterion or practice bears more heavily upon the disabled person. Its purpose may require more favourable treatment to remove that disadvantage.
4. A “step” under section 20(3) is not confined to measures directly enabling an employee to return to or remain at work. Any modification or qualification of the relevant provision, criterion or practice which would or might remove the disadvantage is capable in principle of being a step. Disregarding the earlier absence could have withdrawn the warning and delayed dismissal. Extending the attendance threshold might likewise have reduced the risk of future disciplinary action.
5. Reasonableness was for the Tribunal to determine objectively. It was entitled to refuse to disregard an absence of 62 days where the condition was not a one-off event and further lengthy absences were anticipated. It was also entitled to reject the proposed extension. No principled period was apparent, and a short extension would have limited value if future absences were likely to exceed it.
6. The absence of a reasonable adjustment does not determine whether a later warning or dismissal is lawful under section 15 of the Equality Act 2010. Any sanction for disability-related absence must still be proportionate in all the circumstances. Elias LJ gave the judgment; McCombe and Richards LJJ agreed.

1. Court of Appeal (Civil Division): The appeal was dismissed. The Court held that the reasonable-adjustments duty arose and that both proposals were capable of being statutory steps, but upheld the Tribunal’s conclusion that the proposed adjustments were unreasonable.
2. Employment Appeal Tribunal: The appeal, UKEAT/0372/13/JOJ, was dismissed. The EAT agreed that there was no substantial disadvantage and that the adjustments were unreasonable. It additionally held that the proposals were not “steps” within section 20(3) of the Equality Act 2010.
3. Employment Tribunal: The majority dismissed the section 20 claim, finding that the duty did not arise and that neither proposed adjustment was reasonable. A minority member would have upheld the claim.