Section 20

Section 20 of the Equality Act states that employers have a duty to make reasonable adjustments if a disabled person is placed at a substantial disadvantage compared with an able bodied comparator. In Griffiths v Secretary of State for Work and Pensions the Court of Appeal held that if an employee’s disability means they are more likely to be absent from work than able-bodied colleagues, the duty is likely to be engaged.

Thompsons were instructed by Ms Griffiths’ union, the PCS, to act on her behalf.

Basic facts

The DWP operated an Attendance Management Policy which stated that formal action would be taken against any employee who was absent from work for more than eight days in any 12-month rolling period, although this “consideration point” could be extended as a reasonable adjustment for disabled employees. After being off sick for 62 days because of her disability, Ms Griffiths was given a formal written improvement warning when she returned to work, in line with the policy.

She lodged a grievance asking her employer to disregard the 62 days (which meant also withdrawing the written warning) and that the consideration point should be increased in future to 20 days in any rolling 12-month period to accommodate the fact that she was likely to have a higher level of sickness absence than non-disabled workers and to reduce her risk of being dismissed for a reason related to her disability. Her grievance was dismissed, as was her appeal.

Ms Griffiths lodged a tribunal claim alleging that her employer's failure to make the adjustments constituted a breach of Section 20.

Tribunal and EAT decisions

Relying on the decision in Royal Bank of Scotland v Ashton, a majority of the tribunal held that the duty to make adjustments did not arise because the sickness policy applied equally to everyone which meant that the disabled could not be placed at a substantial disadvantage in comparison to non disabled colleagues.

In any event, it held that the adjustments were not reasonable, not least because they would amount to a perpetual extension of sickness absence and it would put the DWP in the “invidious” position of having to decide how far the sickness absence consideration points should be extended. The EAT agreed.

Decision of Court of Appeal

The Court of Appeal agreed with the tribunal that the adjustments proposed were not steps which the DWP could reasonably be expected to take.

However it rejected the assertion that courts should be indifferent to the reason for the absence. As the Court of Appeal pointed out, the fact that both employees were treated equally and might both be subject to the same disadvantage when absent for the same amount of time did not eliminate the disadvantage if the policy affected the disabled person more than the able bodied person.

As the whole point of section 20 was to require employers to take whatever steps that might be reasonable in order to remove the disadvantage, the fact that the able-bodied might also be disadvantaged by the rule was irrelevant.