Griffiths v The Secretary of State and Another

JurisdictionEngland & Wales
JudgeLord Justice Elias,Lord Justice McCombe,Lord Justice Richards
Judgment Date10 December 2015
Neutral Citation[2015] EWCA Civ 1265
Docket NumberCase No: A2/2014/1753/AITRF
CourtCourt of Appeal (Civil Division)
Date10 December 2015

[2015] EWCA Civ 1265

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

RECORDER LUBA QC

UKEAT/0372/13/JOJ

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Richards

Lord Justice Elias

and

Lord Justice McCombe

Case No: A2/2014/1753/AITRF

Between:
Griffiths
Appellant
and
The Secretary of State
For Work and Pensions
Respondent

Mr Michael Ford QC and Ms Melanie Tether (instructed by Thompsons) for the Appellant

Mr Douglas Leach (instructed by Government Legal Department) for the Respondent

Hearing date : 22 September 2015

Lord Justice Elias

Introduction

1

The appellant became an employee of the respondent employer on 20 September 1976. She was at all material times employed as an Administrative Officer. From about October 2009 she started to experience the symptoms of conditions which were later diagnosed as post viral fatigue and fibromyalgia. As her employer subsequently conceded, this meant that she qualified as a disabled person within the meaning of the Disability Discrimination legislation. Following a 66 day absence from work, 62 of which were the result of an illness arising out of her disability, she was given a formal written improvement warning in May 201This was in accordance with the terms of the respondent's Attendance Management Policy ("the Policy") which envisaged the possibility of disciplinary sanctions after a specified period of absence from work.

2

The appellant raised a grievance in which she contended that due to her disabled status, her employer should in her case make two adjustments to the application of the Policy pursuant to section 20 of the Equality Act 2010. In broad terms this section specifies that where the arrangements adopted by an employer subject a disabled worker to a disadvantage, the employer should make reasonable adjustments designed to avoid the disadvantage. The adjustments she sought were these. First, she asserted that given that the lengthy absence which gave rise to the written improvement warning was the result of her disability, and moreover was when the disability was first diagnosed and a treatment plan put in place, the employer should not treat that absence as counting against her under the Policy with the consequence that the written warning should be withdrawn. Second, she wanted the Policy modified to allow her in future to have longer periods of illness absence before she faced the risk of sanctions than would be permitted for employees not subject to disability-related illnesses. She was unsuccessful in her grievance complaint and a further internal appeal was dismissed; consequently neither of the proposed adjustments was made.

3

She took a claim to the Employment Tribunal ("the ET") alleging that the employer's failure to make the adjustments she sought constituted a breach of the section 20 duty. (There is in fact no obligation on the employee to identify potentially reasonable adjustments but that was done here and they were the only potential adjustments considered by the Tribunal.) The majority dismissed her claims concluding that no duty to make either adjustment had arisen, and that in any event it was not reasonable for the employer to be expected to make either of them. The minority member would have upheld the claim on both grounds. An appeal to the Employment Appeal Tribunal ("the EAT") was unsuccessful, the EAT (Mr Recorder Luba QC presiding) agreeing with the ET on both points. In addition the EAT held that the claim should fail for the further reason that the adjustments sought were not of a kind which fell within the terms of section 20. The appellant now challenges each of those conclusions.

The relevant terms of the Policy

4

The Policy provides that consideration will be given to formal action being taken against an employee where his or her absences reach an unsatisfactory level, known as "the Consideration Point". This concept is explained in the introduction to the Policy as follows:

"The "Consideration Point" recognises that, as a human being, you are prone to illness and is a level of sickness absence within which you will not be subjected to formal action. It is set at 8 working days of sickness absence in any rolling 12 months … but may be increased as a reasonable adjustment if you are disabled."

5

Paragraph 2 of the Policy provides that formal action will begin when the Consideration Point is reached.

6

The Policy itself, in paragraphs 2.3–2.4, spells out the purpose behind making adjustments to the Consideration Point for disabled employees and the circumstances where this may be appropriate:

2.3 Managers have a duty to make reasonable adjustments for disabled employees. Where appropriate, managers will allow a reasonable amount of additional sickness absence for a disabled employee when such absence is disability related. The purpose of increasing the Consideration Point in this way for disabled employees is:

• To remove any disadvantage disabled employees may face by being expected to reach the same attendance standard as non-disabled employees

• To ensure that disabled employees are clear about the attendance standard they are expected to meet and remove uncertainty about the possible consequences of taking time off as a result of their disability

• To promote the continued employment of disabled employees

2.4 If the Consideration Point is increased it is known as the Disabled Employee's Consideration Point. The Disabled Employee's Consideration Point will be made up of the normal 8 days … for non-disability related absences and an additional number of days of absences related directly to the disability. Formal action will begin when:

Absences that are not related to the disability reach or exceed 8 working days; or,

The combination of disability-related and any non-disability related absences reach or exceed the Disabled Employee's Consideration Point.

This means that whether an employee is disabled or not, formal action will begin at 8 days for absences unrelated to disability. But disabled employees have the flexibility to use these 8 days, (or some of them) as well as the additional number of days which has been agreed, for absences related to their disability if needed.

7

Paragraph 2.6 sets out what it terms "the formal stage for irregular absences". There are four stages: an oral improvement warning; a written improvement warning; consideration of dismissal/demotion; and dismissal or demotion. The express reference to the consideration of a sanction as a separate stage 3 might suggest that whilst the first two stages are automatic once the relevant level of absence has been met, the final sanction is discretionary. In fact, however, paragraph 3 makes it clear that the imposition of these earlier warnings is also discretionary. It is provided that the managers should not give a warning if:

"(a) One of the circumstances detailed in the list below applies …

The employee is disabled, the absence is directly related to the disability, and it is reasonable to increase the Consideration [Point]…

Taking into account the exceptional nature and/or circumstances of the absence and the employee's satisfactory attendance record, it would be perverse, unfair or disproportionate to give an improvement warning.

(b) They believe for reasons not detailed in the list that an Oral Improvement Warning would be inappropriate. This may include, for example, a reasonable expectation of improvement …"

(The underlinings appear in the original document)

8

The adjustments sought by the appellant could, therefore, have been made consistently with the terms of the Policy. The written improvement warning given in response to the 62 day absence could have been revoked pursuant to para. 3(a) on the grounds of the exceptional nature and circumstances of that absence; and the additional permitted absence could have been achieved by establishing a new Disabled Employee's Consideration Point as envisaged by para. 2.3 so as to confer the benefits described in para. 2.4.

The material facts

9

The appellant first started to experience the symptoms of her disability in October 200Between October 2009 and 4 February 2010, she had 9 days of sickness absence. On 23 February 2010 her line manager, Mr. Dafydd Jones, gave her an oral improvement warning in accordance with the Policy. She does not complain about that warning.

10

Between 27 October 2010 and 2 May 2011 the appellant was absent from work for a total of 66 days. This was due principally (all but four days) to a continuous period of absence between 4 February 2011 and 2 May 2011 of 62 days. At an informal attendance review meeting on 7 March 2011 the appellant stated that her GP believed that she might be suffering from fibromyalgia and had referred her to a specialist. The Respondent subsequently received a report from the appellant's consultant on 29 March 2011 which confirmed that the appellant had post-viral myalgia symptoms related to chronic fatigue but observed that her condition appeared to be gradually improving.

11

Following the appellant's return to work on 3 May 2011, there was an attendance review meeting on 9 May 20She was given a written improvement warning. On 7 June 2011 her trade union representative submitted a grievance on her behalf. He asserted that the appellant was a disabled person within the meaning of the Equality Act 2010 and proposed that the two reasonable adjustments referred to above should be made. The grievance also requested that the appellant be referred to the Occupational Health Service to establish whether the condition from which she was suffering was a disability within the...

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