Duty to make reasonable adjustments regarding attendance management cases

by Julie Bann and Adrian Hoggarth

In this case the claimant had been absent from work for disability-related reasons for 62 days consecutively, which triggered a second warning under the employer’s attendance management policy. While this policy did enable the employer to adjust the trigger point in cases of disabled employees, they chose not to do so.

The claimant alleged that this was a breach of the duty to make reasonable adjustments, saying that the substantial disadvantage she suffered was the stress and anxiety of facing future warnings for her absence and the adjustments. The proposed adjustment was that the warning should be rescinded and the trigger point for future warnings should be adjusted.

The claimant failed at the ET and the EAT and appealed to the Court of Appeal.

Court of Appeal
The Court of Appeal looked at the two-part test:
– Is the requirement to make reasonable adjustments triggered?
– What adjustments would be reasonable to make?

The Court dismissed the appeal on the basis that the claimant could not satisfy them that the adjustments she proposed were reasonable. They agreed with the ET in that the length of her absence was such that it was not reasonable to rescind the warning, and the suggestion that she should be given an additional “buffer”, pre-warning would mean that the employer would have to consider this at every further period of sickness. Moreover, setting the level of that buffer would have been an arbitrary exercise based on subjective criteria.

Although it was not necessary to consider the first stage of the test, Elias LJ in his leading judgment did consider this and suggested that the duty to make reasonable adjustments would be triggered in this type of case. The ‘provision, criteria or practice’ (PCP) is a requirement to attend work at a certain level in order to avoid sanction under the policy. Therefore, if a disabled employee has difficulty in meeting this PCP, they will be at a substantial disadvantage vis a vis non-disabled employees, triggering the duty.

However the principal aim of the duty to make reasonable adjustments is to support the employee in the performance of his duties and/or in integrating into the workplace. So in this case, the disadvantage was the stress/anxiety associated with the fear of future sanction. This was clearly not connected in any way with a failure to support the employee in the workplace.

Elias LJ said: “I would accept that whilst a disabled employee may suffer disadvantages not directly related to the ability to integrate him or her into employment, the steps required to avoid or alleviate such disadvantages are not likely to be steps which a reasonable employer can be expected to take.”

However, Elias LJ did state that “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.

ACTION

– The duty to make reasonable adjustments may arise in cases of long term absenteeism or short but frequent absenteeism related to a disability;
– However, any adjustments must be reasonable and must support the employee’s return to work in either providing some form of support in undertaking the role or supporting integration into the workplace.
– Review your absence policy to ascertain if there is any agreement for allowing a “buffer” before you issue a warning and apply this consistently.