Every organisation has to manage sickness absence. Matters can and do become more complex when the absence is caused by or related to a disability. Should employers make a reasonable adjustment by adjusting sickness absence triggers when dealing with repeated absence by disabled employees?
The Court of Appeal has recently considered this point in the case of Griffiths v DWP.
It was accepted by her employer, DWP, in October 2009 that Griffiths was disabled . She had periods of sickness absence, of which the vast majority were due to her disability and, as a result, received a formal written warning in line with DWP’s sickness absence policy.
The employer’s absence policy contained a number of built-in safeguards for disabled employees:
- the 8-day written warning trigger point could be increased for disabled employees
- managers had discretion at each stage over whether to issue a warning or take other action
- the policy said no warning should be issued if it would be disproportionate or inappropriate, and reasonable to increase the trigger point in the case of disabled employees.
Should the DWP have adjusted the trigger points which led to the warning of discounted days when Griffiths was absent due to her illness? The Employment Tribunal and Employment Appeal Tribunal rejected the claim for reasonable adjustments. The Tribunal concluded that to make these adjustments is not reasonable
Did the Court of Appeal agree?
The Court of Appeal did acknowledge that absence triggers could result in a disadvantage for disabled employees. It could also be reasonable to discount certain periods of absence when deciding whether to dismiss an employee or take other action for absence caused by sickness. Ultimately though the Court of Appeal did conclude that to adjust the sickness absence triggers in this case was not reasonable.
What do employers need to consider?
This case is helpful because it supports the concept of having attendance standards but it certainly does not go so far as to authorise employers applying absence triggers to disabled employees in every case. In certain cases, for example initial absence periods or “one-off” periods of absence it may still be reasonable to discount these periods.
Ultimately if the application of the absence policy results in dismissal, it still needs to be proportionate and justified.