The CoA on disability discrimination law

Disability discrimination law has been clarified by a significant Court of Appeal ruling, but it remains complex when applied to ill-health absence, writes Phil Allen.

The Court of Appeal has delivered an important judgment which resolves many of the complex legal issues around disability discrimination law and absence management. The case of Griffiths v The Secretary of State for Work and Pensions answers many of the technical legal questions around how the law on disability-related discrimination and reasonable adjustments is to be applied.

However, what is left in practice is the difficult need for justification and the ‘reasonableness’ of adjustments to be decided by each employer on a case by case basis. So whilst this case may resolve technical law, applying the law to day-to-day issues remains as difficult as it has always been.

The facts

The employer in this case had an attendance management policy which included a consideration point for formal action, which was triggered after a certain amount of absence. The policy also included some provisions which extended for those with disabilities the absence threshold before the consideration point was hit. Ms Griffiths was an employee with a disability who brought a claim after she was given a written warning when her absence level had hit the relevant consideration point.

The case involved consideration of the two types of discrimination which are specific to disability: unfavourable treatment for a disability-related reason (which can be justified); and the duty to make reasonable adjustments. A number of key points arise from the judgment:

• There has been considerable debate since the original disability discrimination law came into force about to whom you compare the treatment of a disabled employee when deciding whether the disabled employee has suffered a ‘substantial disadvantage’ (particularly with long term ill-health cases). In a very thorough judgment, the Court of Appeal has said there is no need for such a comparison.
• The Court held that, for reasonable adjustments, the provision criterion or practice which needs to be considered when an absence policy is applied, is that the employer is requiring the employee to maintain a certain level of attendance at work in order not to be subject to the risk of sanction. This clearly always places those with a disability (which may affect attendance) at a disadvantage.
• This shifts the focus on to the other key question. You will need to decide in each case whether there is anything which reasonably should be done to adjust the application of the policy (for example delaying a warning or dismissal). Whether a particular step is a ‘reasonable’ adjustment will ultimately be decided by a Tribunal on a case-by-case basis.
• With this approach to disadvantage, there will also be greater focus on justification arguments. A Tribunal will ask whether the terms of an absence management policy, and the manner in which it was applied, were a ‘proportionate means of achieving a legitimate aim’. This argument applies to unfavourable treatment for a disability related reason and indirect discrimination only, a failure to make a reasonable adjustment cannot be justified. However, justification and the duty to make reasonable adjustments are inevitably inter-linked.

The Court of Appeal upheld the original Tribunal’s decision in this case and the employee’s claim failed. The Court concluded that there is no need for an employer to completely disregard disability-related absence when applying absence procedures. An employer is entitled to say, after a pattern of illness absence, that it should not be expected to accommodate an employee’s absences any longer. That is not necessarily an unreasonable decision. However the pattern of absence, the reason for it, and the fact that some of the absence may be disability-related, are all highly relevant considerations when deciding whether action is appropriate in each case.

What does this mean for me?

The Court of Appeal has confirmed that you can, if you wish, have in place a detailed absence management policy with trigger points. However you will need to justify the application of those trigger points if challenged and it may be sensible to include within a policy some flexibility if the absences are as a result of a disability. Indeed such flexibility may be required for the warning to be justified or so you have made a reasonable adjustment. You are not however obliged to ignore occasions of disability-related absence. You will also find it easier to justify the application of attendance standards to an individual employee with a disability if you regularly review the operational impact of sickness absence on the relevant business and the commercial reasoning behind the specific standards (and can evidence such review).

However what this judgment really means is that the lawfulness of your approach to each individual’s absence and the warnings applied will turn upon the facts of each case. Each individual with a disability will be able to contend that some variation in your practice will be a reasonable adjustment for them. That makes it harder to identify what is legally right, as what is reasonable will vary between employees.

In considering your procedures and how documents are worded, you may also want to take note of an observation of the Court which observed that ‘it is unfortunate’ that absence policies often use the language of warnings and sanctions which makes them sound disciplinary in nature and suggest that an employee may be culpable when absent, when that is not usually the case.

Phil Allen is a partner at Weightmans. He can be contacted on 0161 214 0504 or This email address is being protected from spambots. You need JavaScript enabled to view it..

This alert is only a summary of a detailed Judgment which has significant importance for disability discrimination law. If you are reviewing your own absence policy or considering your own trigger points, do take advice on the precise implications that this case may have. The application of disability discrimination law to long term absence remains a complicated issue.