Management of disability related absence
David Gray-Jones Tuesday, May 24, 2016
In the case of Griffiths v Secretary of State for Work and Pensions, the Court of Appeal looked at the question of whether it is a reasonable adjustment to discount disability related absence in an absence management procedure. Previous case law had suggested that it might not be necessary to discount such absence.
In this case the Court of Appeal found that the employer's requirement for consistent attendance at work could be seen as a provision criteria or practice (known as a PCP) which would disadvantage this disabled employee. The Court of Appeal took a more favourable approach than had previously been taken on this point and found that this could be the basis of a reasonable adjustment.
The Court of Appeal did not ultimately find in the employee's favour. The reason for this is because, even though it was a disadvantage to the employee, it was felt not reasonable for the employer to have to change the criteria. This meant that the employee did not ultimately benefit from the decision.
However, before employers breathe a sigh of relief, it should be remembered that this case could have been argued at a case of discrimination arising from disability which would have been easier to establish at the liability stage. There would still be a significant debate about justification but with fewer legal hoops for the employee to jump through to begin with.
The situation is more favourable to employees in principle but the application of the law to this situation remains uncertain in practice.