Caroline Underhill and Rakesh Patel look at the best ways to represent members on long-term sick leave as well as the difficulties in arguing reasonable adjustments
There is plenty of evidence that getting back to work, provided the person is fit enough, helps recovery and retention of employment. It is also generally accepted that employers do not have to tolerate lengthy absences even if they are perfectly genuine and justified.
Helping an employee keep their job is therefore usually about finding changes that can be made to the job or an alternative job that the employee can do despite the long-term condition. Best practice guidance suggests that employers should consider steps that will facilitate an early return to work for someone who may be fit with some help, regardless of whether they have a disability or not.
For example keeping in touch during absences, phased returns to work and temporary adjustment of duties can all help someone return to work who might otherwise be off sick for longer.
Reasonable adjustments
Section 20 of the Equality Act 2010 states that employers have a duty to make reasonable adjustments to their policies or practices, their physical premises or by providing auxiliary aids to avoid substantial disadvantage to employees who have a disability.
This is usually referred to as the duty to make reasonable adjustments. The obligation on the employer to make reasonable adjustments for a person who has a disability and is on long-term sickness absence is a useful resource to help return the employee to work and for providing a remedy if the employer fails to make the adjustment.
The duty to make reasonable adjustments arises when the employer knows or could reasonably be expected to know that the person is disabled and that they are disadvantaged in some way by one of their policies, the physical premises from which they operate or the failure to provide an auxiliary aid.
A person is disabled under the Act if they have or have had a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Long term means that the condition has lasted for at least 12 months or that it is likely to last 12 months or even the rest of the life of the person affected.
The duty is a duty to make reasonable adjustments as opposed to a duty to consider them or just consult about them. However, if the medical advice given to the employee and the other medical information available from occupational health or other sources makes clear that the employee is not fit for work for the foreseeable future, there is no duty to make the adjustments, unless the employee or the medical evidence suggests that the employee would be fit to return to work with adjustments.
Some employers try to argue that they have no obligation to make reasonable adjustments until the employee can give them a definite return date, which puts the employee in what is effectively a chicken and egg situation.
The issue is not whether there is a definite return date but whether there is anything that could reasonably be done that would enable the employee to give the employer a return date.
For example in the case of Home Office -v- Collins the employer did not have to consider a phased return for an employee off sick for a prolonged period with anxiety and stress unrelated to work and who could give no indication of when he might be fit to do some work.
Compare that with the case of London Underground Ltd -v- Vuoto in which the employer was required to make changes that would help the employee return to work (by a further period of redeployment on fixed shifts) even though there was no clear fixed return date.
Three steps
The duty to make reasonable adjustments has to be analysed by identifying the following three steps:
- The provision, criterion or practice (PCP) or physical feature or absence of an auxiliary aid that puts the disabled person at a substantial disadvantage
- The PCP or physical feature or absence of an auxiliary aid does not have that effect on those who are not disabled
- There are reasonable steps that can be taken to avoid the disadvantage.
Many employers now have policies for managing absence that include a provision for making adjustments where it is reasonable to do so for employees who have disabilities. For example adjusting trigger points for warnings for long-term sickness absence.
This has, however, caused some confusion in how to argue a case for an employee when the employer has either failed to use the provisions in the policy to adjust the trigger points or a disagreement on whether any adjustment was sufficient in the circumstances.
There will be further case law on this later this year following the case of Griffiths -v- The Secretary of State for Work and Pensions, as it is due to be heard by the Court of Appeal in September 2015.
At a disadvantage
At the moment, however, it would appear from the case law that, in cases of long-term absence due to sickness, the PCP that puts the employee with a disability at a disadvantage will usually be the requirement to have consistent attendance at work.
The disadvantage is the possibility of capability proceedings, warnings and dismissal, if they fail to meet that PCP.
A person who is not disabled would not have the same history of absence.
Therefore steps should be taken to make reasonable adjustments to the requirement for consistent attendance where that would remove the disadvantage.
Case of Carranza
The above approach was suggested in General Dynamics Information Technology Ltd -v- Carranza, although the employee in that case failed to show that there had, in fact, been a breach of the duty to make reasonable adjustments.
The employee had a long period of disability-related absence that resulted in a written warning. Two further short periods of disability-related absence were ignored. The employee was then absent for an unrelated matter and was dismissed.
The Employment Appeal Tribunal (EAT) did not accept that ignoring the written warning was a reasonable adjustment that should have been made; effectively the employer’s requirement for consistent attendance won out on balance.
As a result, there is no requirement as a matter of law to ignore all disability-related absence.
Case of Griffiths
Despite the fact that Carranza failed, at least it tried to get around the difficulties for people with disabilities resulting from the approach in Griffiths. Ms Griffiths, who is disabled, was off work for 62 days in 2011 and as a result received a written warning.
She submitted a grievance (and later a tribunal claim) arguing that it would be a reasonable adjustment for the employer to (a) disregard the 62 days’ absence with the result that the warning would be withdrawn; and (b) apply a higher "consideration point" (the number of days' absence that would trigger formal action under the employer's absence management policy).
The default consideration point was eight days in any 12-month rolling period, although the policy expressly provided managers with a discretion to increase it for disabled employees. The employment tribunal and the EAT found that there was no PCP that put Ms Griffiths at a substantial disadvantage compared to those who were not disabled. This was because the policy of issuing warnings after a trigger point would have applied in the same way to someone who was not disabled. Ms Griffiths was not therefore disadvantaged, compared to a person who was not disabled, by the operation of the trigger point for a warning.
In her appeal Ms Griffiths argued that, because of her disability, she was more likely than her non-disabled colleagues to suffer a level of sickness absence that reached or exceeded the consideration point when formal action would be taken under the policy. Further, her disability created a substantial risk that absences related to her disability would absorb the eight days of sickness absence which better reflected the level of absence that any employee might incur as a result of occasional ailments.
Absence management policies
In reality both the Griffiths and the Carranza cases illustrate the difficulties that claimants face when trying to argue that employers have failed to make reasonable adjustments when applying an absence management policy.
This does not mean that these arguments should not be deployed but they should run alongside other arguments about changes that would reduce the level of sickness absence.
In other words, the key is likely to be the action that can be taken to reduce the level of absence.
Relying solely on adjustments to absence management procedures will rarely be sufficient (pending some change in case law), so union members need to identify other modifications and changes or adjustments employers can reasonably carry out that will reduce their level of sickness absence.
For example, depending on the circumstances, changing job location, changing work equipment, giving some of the tasks to another person, arranging a mentor or work buddy, working in a team rather than by themselves or vice versa. These are just examples. What might work depends on the disability and what will help get the employee back to work. Sometimes it will be a combination of adjustments.
Identify the disadvantage
Having identified the PCP, the next stage is to identify the substantial disadvantage caused by that PCP. This is important because the duty to make reasonable adjustments is aimed at targeted adjustments to deal with the particular substantial disadvantage rather than general adjustments. In other words, identifying what is causing the disadvantage identifies the PCP.
The substantial disadvantage must, however, be “in comparison with persons who are not disabled”. In Griffiths the EAT ruled that the proper comparator for the purposes of establishing disadvantage was a non-disabled person, absent for sickness reasons for the same amount of time as the claimant, but not for a disability-related reason.
If a claimant was treated as well as those comparators, she could not be at any disadvantage. The reasonable adjustments duty did not therefore arise.
We think that the EAT decision is wrong. Effectively it said that the comparator must not be in materially different circumstances to the claimant. This is the definition of “comparators” under the Equality Act 2010 which applies to direct discrimination. But Griffiths is about a failure to make reasonable adjustments and not direct discrimination.
There is nothing in the Act that says, in a reasonable adjustment case, the comparator must not be in materially different circumstances. This aspect of the Griffiths decision is also contrary to European law.
In sickness absence cases the disadvantage is the fact that the employee is off sick and therefore vulnerable to the absence management policy.
So for example in Vuoto, the employee was off sick because of stress exacerbating his multiple sclerosis. The stress was caused by London Underground requiring him to change his shift patterns and work location away from previously agreed adjusted shifts.
Had he returned to the previously agreed shifts he would not have been under stress and would have been able to return to work. The PCP was not just the absence management policy but also the criteria that he had to work the shifts that management wanted him to work. That put him at a substantial disadvantage as the requirement to work shifts caused him stress, which made him ill.
The important thing to remember is that there is no requirement to consider the reasonableness or otherwise of adjustments unless and until there is a duty to make those adjustments. It is therefore very important to identify the PCP, physical feature or relevant matter and also the substantial disadvantage. Once that is identified, only then is it possible to decide on the reasonableness of any adjustment.
Other possible adjustments
Union reps should not forget to look at adjustments to the physical workspace that might help keep someone in work or help them return from sick leave. For example moving a workstation closer to a toilet if the person has mobility problems or a disability affecting continence.
Equally, reps should not overlook adjustments by way of auxiliary aids such as voice-activated software or other aids that would enable a disabled person to carry out their duties.
Discrimination arising from disability
Finally, when advising employees on long-term sickness absence, in addition to reasonable adjustments, it is also useful to consider “discrimination arising from disability”.
Under the Act, this occurs when A treats B unfavourably because of something arising in consequence of B's disability and A cannot show that the treatment is justified.
For instance, an employer dismisses a worker because she has had three months' sick leave. The employer is aware that the worker has multiple sclerosis and most of her sick leave is disability-related. The employer's decision to dismiss is not because of the worker's disability itself (so not direct discrimination).
However, the worker has been treated unfavourably because of something arising in consequence of her disability, namely the need to take a period of disability-related sick leave. The issue then will be whether dismissal is a proportionate means of achieving a legitimate aim.