Ever since the enactment of the Disability Discrimination Act 1995, now subsumed within the Equality Act 2010, there has been an uncomfortable overlap between dealing with ill-health incapacity as a potentially fair reason for dismissal and dealing with protection from disability discrimination. For example, the same facts might justify a fair termination of employment in the context of the usual grounds for dismissal but could also establish a valid claim for disability discrimination, which would constitute an automatically unfair dismissal.
The issue was most recently visited by the Court of Appeal in the case of Griffiths v DWP which is of particular significance for employers who want to take steps to minimise risks in this regard. Ms Griffiths was employed by the DWP from September 1976. In 2009 she began suffering from post viral fatigue and fibromyalgia. This meant that she was disabled within the meaning of the legislation. In 2011, following an absence of 66 days, she was issued with a formal written improvement warning. As a result she raised a grievance, contending that the employer should have made adjustments, first by discounting the circumstances leading to the warning because they were connected with her disability and, second, that the relevant policy should be modified so that she could have longer periods of sickness absence before facing sanctions than would be permitted for non-disabled employees. Both her grievance and the appeal were rejected.
As a result she presented a complaint of disability discrimination to an employment tribunal. Her claim was dismissed on the basis that no duty to make either adjustment had arisen and in any event it was not reasonable for the employer to be expected to make either of them. An appeal to Mr Recorder Luba QC in the Employment Appeal Tribunal was similarly unsuccessful.
The questions on appeal to the Court of Appeal were:
- Was the majority of the Employment Tribunal right to conclude that there was no substantial disadvantage so as to engage the duty to make reasonable adjustments?
- Was the EAT right to conclude that the proposed amendments were not steps within the meaning of the Equality Act?
- If there was a duty and the proposed adjustments did constitute potential steps which might be taken did the Employment Tribunal misunderstand the claim in terms of reasonable adjustments?
- If the Employment Tribunal did understand the claim was it entitled to find that it was not reasonable to expect the employer to make either of the proposed adjustments?
Having considered the relevant authorities at length Lord Justice Elias concluded that both the majority in the Employment Tribunal and the EAT were wrong to hold that there was not a substantial disadvantage sufficient to engage the duty to make reasonable adjustments. As he observed:
In my judgment, the appropriate formulation of the relevant [provision, criterion or practice] in a case of this kind was in essence how the ET framed it in this case: the employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions. That is the provision breach of which may end in warnings and ultimately dismissal. Once the relevant PCP is formulated in that way, in my judgment it is clear that the minority member was right to say that a disabled employee whose disability increases the likelihood of absence from work on ill health grounds, is disadvantaged in more than a minor or trivial way. Whilst it is no doubt true that both disabled and able bodied alike will, to a greater or lesser extent, suffer stress and anxiety if they are ill in circumstances which may lead to disciplinary sanctions, the risk of this occurring is obviously greater for that group of disabled workers whose disability results in more frequent, and perhaps longer, absences. They will find it more difficult to comply with the requirement relating to absenteeism and therefore will be disadvantaged by it.
In answer to the second question there was no need to require a very narrow definition of what constituted “steps”. However, in order for them to be steps that the employer might reasonably be expected to take, they need only be steps in general terms to accommodate the requirements of disabled employees rather than a specific requirement for extended periods to be provided for disabled employees before invoking absence based sanctions.
Ms Griffiths’ case had been properly understood by the Employment Tribunal. However they chose not to accept that the employer should have made the adjustments requested. On the facts of this particular case they were entitled to do so. However he added a warning for employers:
However, it is important to add this. As I have already discussed, the positive duty to make reasonable adjustments is only a part of the protection afforded to disabled employees. The fact that the employer may be under no duty to make positive adjustments for a disabled employee in any particular context does not mean that he can thereafter dismiss an employee, or indeed impose any other sanction, in the same way as he could with respect to a non-disabled employee. The employer is under the related duty under section 15 to make allowances for a disabled employee. It would be open to a tribunal to find that the dismissal for disability-related absences constituted discrimination arising out of disability contrary to section 15. This would be so if, for example, the absences were the result of the disability and it was not proportionate in all the circumstances to effect the dismissal.
This is particularly relevant to the first proposed adjustment. In substance the complaint is that it was disproportionate to impose the disciplinary sanction given that the absence giving rise to it was disability-related. It is that treatment which lies at the heart of the complaint, not the failure to make an adjustment. The section 20 duty is normally relevant when looking into the future; it is designed to help prevent treatment which might give rise to a section 15 claim from arising. But that is not the purpose of the section 20 complaint here. It is really a staging post in challenging in order to invalidate the written warning – treatment which has already arisen. In my view there is a certain artificiality in arguing the case in that way. I respectfully agree with some observations of HH Judge Richardson in General Dynamics Information Technology Ltd v Carranza para. 34 when he said that dismissal – and I would add any other disciplinary sanction – for poor attendance can be quite difficult to analyse in terms of the reasonable adjustments duty, and that:-
- “Parties and employment tribunals should consider carefully whether the duty to make reasonable adjustments is really in play or whether the case is best considered and analysed under the new, robust, section 15.”
The same artificiality does not, however, relate to the second proposed adjustment. That is designed to look into the future and to limit the risk of future disciplinary treatment being meted out for absence from work which would be disproportionate. But even where there are no relevant reasonable adjustments of this nature to be made, the question would still arise, at the time of dismissal, whether the dismissal is a proportionate response to the pattern of absences having regard to all the circumstances, including the important fact that they may be wholly or in part disability related.
Accordingly, in this case it cold not be said that the employer was required to make the requested adjustments but it would be foolhardy for an employer to disregard the need to make reasonable adjustments, particularly when dealing with sickness absences from a disciplinary perspective.
As a general observation, although not required in this case, it is prudent for an employer to make specific reference to the obligation to adapt a sickness policy for disabled employees in the policy itself, thereby demonstrating an awareness of the issue. Whether specific steps are also included is a matter for each employer.