Ms D L Griffiths v the Secretary of State for Work and Pensions
| Jurisdiction | UK Non-devolved |
| Neutral Citation | UKEAT/0372/13 JOJ |
| Date | 2014 |
| Year | 2014 |
| Court | Employment Appeal Tribunal |
Discrimination - Disability - Employment - Duty to make adjustments - Employee given warning after lengthy disability-related absence - Whether employer’s attendance policy putting her at disadvantage - Whether duty to make adjustments arising - Whether adjustments proposed by employee “steps” “reasonable” for employer to take -
The claimant, who had been employed by the respondent since 1976, became disabled in 2011 and, following a 66-day absence from work, 62 of which related to her disability, she was given a formal written improvement warning in accordance with the employer’s attendance management policy. The claimant raised a grievance, contending that the employer should make two adjustments to the application of the policy to her case, pursuant to section 20 of the Equality Act 2010F1. She first asked the employer not to treat the lengthy absence that gave rise to the written warning as counting against her under the policy, as it related to the period when her disability was being diagnosed and a treatment plan was being put in place. She also asked the employer to modify its policy to allow her in future to have longer periods of absence before facing the risk of sanctions. When neither proposal was accepted, the claimant brought a claim in the employment tribunal alleging that the employer’s failure to make the adjustments constituted a breach of its duty under section 20. The employment tribunal, by a majority, dismissed the claim, holding that, while there was a relevant provision, criterion or practice within section 20(3), namely a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal, the employer’s attendance policy applied equally to all employees and did not put the claimant at a disadvantage, so that the duty to make adjustments did not arise, and that, in any event, neither of the proposed adjustments was a “step” it was “reasonable” for the employer to have to take under section 20(3). The Employment Appeal Tribunal dismissed an appeal by the claimant.
On appeal by the claimant—
Held, (1) that the relevant provision, criterion or practice, for the purposes of section 20(3) of the Equality Act 2010, had been appropriately formulated by the employment tribunal, but, contrary to the view of the tribunal, it was clear that a disabled employee whose disability increased the likelihood of absence from work on ill-health grounds was disadvantaged by it in a more than minor way; that the comparison exercise under section 20 required one simply to ask whether the provision, criterion or practice put the disabled employee at a substantial disadvantage compared with a non-disabled employee, and the fact that they were treated equally and might both be subject to the same disadvantage when absent for the same period of time did not eliminate the disadvantage when it bit harder on the disabled, or a category of them; and that, accordingly, the section 20 duty did arise in the present case (post, paras 47, 58, 63).
(2) Dismissing the appeal, that any modification of, or qualification to, the provision, criterion or practice in question that would or might remove the substantial disadvantage it caused was in principle capable of amounting to a relevant “step” within the meaning of section 20(3), and the adjustments proposed by the claimant, if taken, would be capable of ameliorating the disadvantage to the claimant resulting from the operation of the employer’s policy; that, however, the question whether they were “reasonable” steps for the employer to take was a matter for the employment tribunal; that, in considering the proposal for the employer to ignore the original 62-day disability-related absence, the tribunal, having noted that the claimant’s condition was likely to occasion further periods of potentially lengthy absence, was entitled to take the view that the fact that the original absence was a period of diagnosis was not a material reason for simply ignoring it; that, in considering the proposal to extend the period before action under the policy was triggered, the tribunal was entitled to find that there was no obviously appropriate extension period and a relatively short extension would be of limited value where the absence was lengthy; and that, accordingly, the tribunal had been entitled to conclude that the proposed adjustments were not steps that the employer could reasonably be expected to take (post, paras 65, 66, 73–75, 82, 83, 84).
Per curiam. (1) It is unfortunate that absence policies often use the language of warnings and sanctions which makes them sound disciplinary in nature. This suggests that the employee has in some sense been culpable. That is manifestly not the situation here, and will generally not be the case, at least where the absence is genuine, as no doubt it usually will be. But an employer is entitled to say, after a pattern of illness absence, that he should not be expected to have to accommodate the employee’s absences any longer. There is nothing unreasonable in the employer being entitled to have regard to the whole of the employee’s absence record when making that decision (post, para 76).
(2) 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 in 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 (post, para 79).
The following cases are referred to in the judgment of Elias LJ:
Archibald v Fife Council
Clark v Novacold Ltd [
Fareham College Corpn v Walters [
General Dynamics Information Technology Ltd v Carranza [
HK Danmark v Dansk almennyttigt Boligselskab
Lewisham London Borough Council v Malcolm (Equality and Human Rights Commission intervening)
Newham Sixth Form College v Sanders
O’Hanlon v Revenue and Customs Comrs [
Paulley v FirstGroup plc
Royal Bank of Scotland v Ashton [
Smith v Churchills Stairlifts plc
Stockton on Tees Borough Council v Aylott
APPEAL from the Employment Appeal Tribunal
By a judgment and written reasons sent to the parties on 12 April 2013, an employment tribunal (Employment Judge Thomas and members), by a majority, dismissed a claim of disability discrimination by the claimant, Ms Deilwen Griffiths, contending that her employer, the Secretary of State for Work and Pensions, was in breach of his duty to make adjustments under section 20 of the Equality Act 2010. On 15 May 2014 the Employment Appeal Tribunal (Mr Recorder Luba QC, Mr K C Mohanty and Mr G D Smith) dismissed an appeal by the claimant: [2014] Eq LR 545.
The claimant appealed on the grounds that (1) the employment tribunal erred in concluding that the claimant was not substantially disadvantaged by the application to her of the employer’s attendance management policy, so as to engage the duty under section 20 of the Equality Act 2010 to make reasonable adjustments; (2) the appeal tribunal erred in concluding that the adjustments proposed by the claimant were not “steps” within the meaning of section 20(3); (3) the employment tribunal misunderstood, and therefore, failed to engage with the claimant’s submissions on reasonable adjustments; and (4) the employment tribunal erred in finding that it was not reasonable to expect the employer to make either of the adjustments proposed by the claimant.
The facts are stated in the judgment of Elias LJ at paras 9–12.
Michael Ford QC and Melanie Tether (instructed by
Douglas Leach (instructed by
The court took time for consideration.
10 December 2015. The following judgments were handed down.
ELIAS LJ
Introduction1 The appellant claimant 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...
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