A round up of the latest HR and Employment Law updates and related stories.

REASONABLE ADJUSTMENTS FOR DISABILITY DISCRIMINATION

Disability issues continue to dominate employment law cases with the recent case of Griffiths v The Secretary of State for Work & Pensions [2015] EWCA Civ 1265 which related to the Equality Act 2010, particularly:

• Section 15 of the Act which of course prevents discrimination by reason of disability and
• The section 20 duty which imposes a duty of employers so that where a “provision, criterion or practice puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled” the employer must “take such steps as it is reasonable to have to take to avoid the disadvantage.”

In this case Ms Griffiths had been employed as Administrative Officer with the Secretary of State for Work & Pensions since 1976. In 2009/2010 she was diagnosed with post viral fatigue and fibromyalgia and was regarded as a disabled person under the law which was then applicable (Disability Discrimination legislation). In May 2011 in accordance with her employers Attendance Management Policy (the policy), Ms Griffiths was given a formal written improvement warning after a 66 day absence from work (62 of those days off were as “the result of an illness arising out of her disability”).

Ms Griffiths raised a grievance under the Equality Act 2010 on the basis that because of her disability her employers should make two reasonable adjustments in respect of the policy so that she was not disadvantaged:

(1) The absence period which culminated in the May 2011 warning should be disregarded for the purposes of the policy with the warning withdrawn and

(2) The policy should be “modified to allow her to have longer periods of illness absence before she faced the risk of sanctions than would be permitted for employees not subject to disability-related illnesses.”

The grievance complaint and appeal were unsuccessful and no adjustments were made so Ms Griffith made a complaint to the Employment Tribunal which eventually came before the Court of Appeal. The Court upheld the decisions of both the Employment Tribunal and Employment Appeal Tribunal which found that the employers had not breached their duty to make reasonable adjustments based on the particular facts of the case because the proposed adjustments were not ones which the employer could be reasonably expected to take.

What is important about this case is that the Court:

• emphasised that the section 20 duty arises “once there is evidence that the arrangements placed the disabled person at a substantial disadvantage because of her disability”
• advised claimants challenging a disciplinary sanction based on poor attendance like Ms Griffiths to look at actually making a claim for discrimination arising from their disability under section 15 of the Equality Act
• admitted that it “can be quite difficult to analyse in terms of the reasonable adjustments duty.”

Practice mangers now need to:

• check that their Equality Policy has a clear process which shows that employees and the practices/employers consider the question of “reasonable adjustments” as soon as an issue arises and
• continue to bear in mind the provisions of s15 of the Equality Act so that discrimination claims by reason of disability can be avoided.