Attendance Policy Adjustment – Disabled Employees

The case of Griffiths v Department for Work and Pensions (DWP) has raised the interesting topic of attendance and disability.

For some, good HR practice has traditionally assumed that as disabled employees may have higher levels of sickness absence, which may be directly related to their disability; attendance management policies could be adjusted (depending on each case) in order to avoid discrimination.

In this particular case, the decision appears contrary however it is important to seek specialist advice should you find yourself managing a similar situation.

Background

The claimant Ms Griffiths, had worked as an Administrative Officer at the DWP for 35 years. Ms Griffiths was diagnosed by her GP with post viral fatigue, and had been absent from work for 62 days.Ms Griffiths was referred to Occupational Health     and was found to be suffering from fibromyalgia. Fibromyalgia is considered to be a disability under the meaning of the Equality Act 2010.

Her absence was dealt with under the DWP attendance policy, which included provision for reasonable adjustments. The policy featured incremental warnings which escalated from a written warning to potential dismissal or demotion.

As a result of her absence, Ms Griffiths was issued with a written improvement warning which advised that should attendance fail to improve, this could result in Ms Griffith’s dismissal from the DWP. In order to avoid formal action, Ms Griffiths used annual leave to cover her subsequent sickness.

Grievance

Consequently, Ms Griffiths submitted a grievance, arguing that her warning should be withdrawn, that her period of absence should be disregarded and that the number of days absence prior to evoking the attendance procedure should be increased. Ms Griffiths then brought a claim to employment tribunal following the rejection of her grievance.

Employment Tribunal

Prior to the employment tribunal, Ms Griffiths contended that she had been taking leave in order to cover disability related absences in an attempt to avoid further disciplinary action having been already issued with a written warning. Ms Griffiths therefore argued that she had been placed at a substantial disadvantage. The majority of the employment tribunal disagreed, and therefore Ms Griffiths appealed.

EAT

The Employment Appeal Tribunal (EAT) agreed with the decision of the employment tribunal who found that when compared to the circumstances of a non-disabled person, Ms Griffiths had been treated similarly and therefore had not been placed at a substantial disadvantage. They argued that as the reasonable adjustments that Ms Griffiths were proposing suggested continuously extending the disciplinary trigger point that this would not be reasonable in any event.

Moving Forward

As highlighted above, the decision in this case appears contrary to some schools of HR best practice. It is therefore advisable to take specialist advice should you find yourself managing similar circumstances.

Whilst every effort has been made to maintain accuracy throughout this article, Nationwide Employment Lawyers cannot accept responsibility or liability for any errors. This article is intended for guidance purposes  only and does not constitute specialist legal advice. Nationwide Employment Lawyers accept no responsibility or liability whatsoever for any action taken or not taken in relation to this article and recommend that appropriate legal advice be taken in all circumstances.