Pump Court Chambers

Recent developments in Employment Law: Disability-related Absence

News 9th May 2016

Griffiths v Secretary of State for Work & Pensions

At the end of 2015, the Court of Appeal handed down its much-anticipated judgment in Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265. In Griffiths the Court of Appeal was required to consider an employer’s duty to make reasonable adjustments for a disabled employee and whether this duty could be applied to an attendance management policy.

A line of EAT authority had previously developed following Royal Bank of Scotland v Ashton [2011] ICR 632 EAT, the majority of which was unhelpful to claimants. It suggested that the duty to make reasonable adjustments was not engaged in many cases of this nature. The logic of the EAT was that, where the PCP (‘provision, criterion or practice’) was an attendance management policy applied uniformly, with trigger points for absences, there was therefore no comparative substantial disadvantage to the disabled employee The PCP was applied due to the number of sickness absences, whether the employee was disabled or not. There was therefore no duty to make reasonable adjustments under s.20 of the Equality Act 2010 [‘EqA 2010’].

In General Dynamics Information Technology Ltd v Carranza [2015] IRLR 43 the EAT held that a duty arose because the PCP was the ‘requirement to attend work consistently’. The disabled claimant in that case had special difficulty in that regard because of disability. It held that certain ‘steps’ could have been taken by the employer for the purpose of its duty to make reasonable adjustments. Disregarding a final written warning would not constitute a ‘step’ but revoking the warning could have been a capable ‘step’. Nevertheless, the EAT rule that this step was unlikely to be reasonable. The possibility of an alternative claim for discrimination arising from disability (s.15, EqA 2010) was also considered but dismissed as objectively justified.

The decision of the Court of Appeal in the case of O’Hanlon v Commissioners for HM Revenue and Customs [2007] EWCA Civ 283 is also significant to considerations under more recent developments in this area. In that case the claimant’s absences meant that she had exhausted her entitlement to sick pay. She argued that it would be a reasonable adjustment for her employer to pay indefinitely for absences related to disability. The Court of Appeal concluded that the contention that sick pay should be paid, and that not paying it amounted to discrimination, was unrealistic and not consistent with the purpose of reasonable adjustments. The duty to make reasonable adjustments is designed to enable disabled people to play a full part in the world of work, not treat them as ‘objects of charity’. This accords with the aims of reasonable accommodation under EU law, which are ‘to enable a person with a disability to have access to, participate in, or advance in employment or to undergo training’ (Article 5 of the Framework Directive). Indeed, the Court pointed out that an indefinite right to full pay might have the opposite effect and provide a disincentive to the employee returning to work.

It was against that background, that the Court of Appeal sought to clarify the issue. It was required to consider an employer’s duty to make reasonable adjustments for a disabled employee and whether this duty should be applied to an attendance management policy. The Court overturned the decisions of the ET and EAT, which both decided that the policy applied to all employees equally, was not capable of placing the disabled employee at a substantial disadvantage and therefore there was no duty to make reasonable adjustments.

Taking onboard the decision of the EAT in Carranza, the Court considered obiter that that the proper formulation of the PCP in such cases is a requirement to attend work at a certain level in order to avoid sanction under the policy. Where an employee’s disability leads to a level of absence that a non-disabled employee is unlikely to have, the rules of a policy would put the employee at a substantial disadvantage. The duty to make reasonable adjustments requires an employer to take positive steps aimed at getting the employee back to work, although the extent to which the adjustments are reasonable will still depend on the particular facts. The Court equally made it plain that those cases may be rare:

‘No doubt there will be cases where it will be clear that a disabled employee is likely to be subject to limited and only occasional absences. In such a situation, it may be possible to extend the consideration point, as the policy envisages, in a principled and rational way and it may be unreasonable not to do so. But in my view the majority has taken the view that this is not appropriate in a case of this nature. In my judgment, the majority was entitled to reach that conclusion.’

In recognition of the difficulties facing claimants in establishing reasonableness of such adjustments, the Court emphasized that a claim for discrimination arising from disability (s.15 EqA 2010) is usually to be preferred, particularly in relation to dismissal. Employers must be fully aware of the need objectively to justify their actions. Dismissing an employee for exceeding a trigger point by one day is not likely to be justified. It is ultimately a question of fact and degree but longer periods of sickness absence will be more easily justified. The outcome will depend on the extent of past absence, any prognosis and the likely pattern of future absences.

The difficulty for claimants after the judgment in Griffiths is less likely to be based upon whether an employer’s duty to make reasonable adjustments applies to cases involving the application of attendance management policies but the ease at which the employer might be able to justify their use. In that regard, a claim brought in these circumstances may still be problematic.

Private Medicine Intermediaries v Hodkinson

As can be seen above, dealing with employees who are on sick leave often puts employers in an invidious position. The case of Private Medicine Intermediaries v Hodkinson UKEAT/0134/15 was a case largely decided on its own particular facts but dealt with the absence of an employee, which eventually resulted in a successful claim for constructive dismissal.

Ms Hopkinson was disabled. She had thyroid dysfunction and cardiac arrhythmia. She had previously had time off work due to her disability. At the time of her resignation she was on sick leave with what was described as depression and anxiety caused by bullying and intimidation by her managers. While she was off work, the employer wrote to her proposing a meeting in order to discuss her concerns. The letter also set out six areas of concern that the employer wanted to discuss with her. Those issues raised by the employer were not serious or pressing.

The claimant stated that her employer had breached the implied term of trust and confidence and that she considered herself to have been unfairly constructively dismissed. She also claimed that the employer had harassed her (s.26, EqA 2010) and had treated her unfavourably because of something arising in consequence of her disability (s.15, EqA 2010). The ET had previously rejected her claims that the employer had failed in its duty to make reasonable adjustments (s.20, EqA 2010).

The EAT found that the actions the employer did not amount to harassment. The ET had ruled that the letter "related to" the Claimant’s debilitating illness described as stress and depression, not to her disability (thyroid dysfunction and cardiac arrhythmia). It had described that her dibilitating illness was due to her own misperception of management issues. Further, it had not been established that the employer’s action in sending the letter created an intimidating, hostile, degrading, humiliating or offensive environment for her.

Given that the ET had rejected the claim that the employer had acted in breach of any duty to make reasonable adjustments, the finding that the claimant had suffered unfavourable treatment for the purposes of s.15 (i.e. posing some form of disadvantage, applying Trustees of Swansea University Pension Scheme and Another v Williams [2015] ICR 1197) was unclear. The ET’s conclusion that the treatment had been because of something arising in consequence of the Claimant’s disability was also inconsistent with its finding, on the reasonable adjustments claim, that the employer’s reason for dealing with the claimant in this way was because it believed that an informal process was sufficient. The claims under s.26 and s.15 were both dismissed.

In contrast, the EAT upheld the tribunal’s constructive dismissal finding. The employee was very ill, the letter did not need to be sent and the claimant was apparently not fit to deal with those matters.

This decision highlights that employers should adopt a common sense approach when communicating with employees who are off work due to sickness. However, although it is important to judge communication (and the reasons behind each communication) carefully, in most cases it is important to stay in touch. But make sure that you judge each communication carefully. If an issue can wait until the employee’s return then the employer should consider putting the matter on hold until then.

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