A summary: the duty to make reasonable adjustments
The duty derives from the Equality Act 2010 and arises when a disabled person is placed at a substantial disadvantage by the application of a provision, criterion or practice ("PCP"); a physical feature; or through the failure of the employer to provide an auxiliary aid.
An employer will only be under a duty to make reasonable adjustments if they knew or ought reasonably to have known both of the disability and that it is likely that the disabled person will be placed at a substantial disadvantage. In order to determine whether or not a disabled employee is being put at a substantial disadvantage it is necessary to compare them to a non-disabled employee.
The duty is to make reasonable adjustments. Therefore, even if the duty arises, an employer may be able to avoid liability if they can show that the adjustments proposed would not have been reasonable in the circumstances.
Griffiths v Secretary of State for Work and Pensions  EWCA Civ 1265
There was no dispute in Griffiths that the employee was disabled, nor whether her employer was aware of her disability. It was accepted that the condition which she suffered from amounted to a disability and that her employer had the relevant knowledge of this disability.
The Department for Work and Pensions (the "DWP") had an attendance management policy which provided that it would apply if there was an absence of eight days within a 12 month period. However, managers did have discretion to discount absences which were related to an employee's disability when determining whether to apply the attendance management policy.
Griffiths was absent for 62 days and as a result received a formal written improvement notice under the policy. She then proceeded to raise a grievance arguing that as her absence was due to her disability it should be discounted and that the absence management policy should be changed so that a later trigger point was applied to disabled employees. Her employer did not uphold her grievance.
She therefore raised an employment tribunal claim for a failure to make reasonable adjustments under the Equality Act 2010. The employment tribunal and the employment appeal tribunal (the "EAT") both rejected her claim. The EAT held that the relevant PCP was the application of the absence management policy and the appropriate comparator was a non-disabled person who was in substantially the same position as Griffiths aside from her disability. Therefore, they compared her to a non-disabled employee off sick for the same length of time, albeit not for a disability related reason. Based on this comparator, Griffiths was not being placed at a substantial disadvantage as she was being treated the same and therefore, the EAT took the view that the duty to make reasonable adjustments did not arise. In addition, it held that the adjustment proposed was not reasonable.
The Court of Appeal, however, took a different view. First of all it held that the correct PCP in cases such as these is not the application of the attendance management policy but the employer's requirement for consistent attendance. It explained that if the policy is used as the PCP in circumstances where it is applied equally to all employees and there is a discretion for changes to be made for disabled employees, it will necessarily produce the result that disabled employees are not disadvantaged by it. However, this approach, according to the Court of Appeal, masks the real problems faced by disabled employees in this situation. If the requirement for a certain level of attendance is used as the PCP, it is apparent that this is something which could disadvantage disabled employees more than non-disabled employees given they are likely to have more absences as a consequence of their disability.
The correct comparator according to the Court of Appeal is not a non-disabled employee whose circumstances are materially similar aside from the disability, but simply a non-disabled employee. The Court of Appeal held that it does not matter if disabled and non-disabled employees are treated the same if the PCP in question disadvantages disabled employees as a result of their disability. Ultimately equality of treatment will not prevent the duty to make reasonable adjustments from arising. It was for this reason that the Court of Appeal disagreed with the EAT and held that the duty to make reasonable adjustments can be triggered in relation to an absence management policy.
Nevertheless, Griffiths was unsuccessful in her claim because the Court of Appeal found that the tribunal had been entitled on the evidence available to it to determine that the adjustments suggested (disregarding the absence which led to the warning and applying a later trigger point) were not reasonable. It was important to this conclusion that Griffiths had had a long absence prior to the warning and given the nature of her condition it was likely that she would have more absences of a significant length. As such, the tribunal had taken the view that it was unreasonable to expect the DWP to ignore her absence and it made it difficult to determine to what the trigger point should be changed. The Court of Appeal commented that if the circumstances were different and she was expected to have further short-term absences it might have been reasonable to extend the trigger point by a short period.
Lessons to be learned by employers
Arguably the following can be learned by employers from this decision:
Employers will likely be under a duty to make reasonable adjustments to their absence management policy for disabled employees if it requires a certain level of attendance;
By applying the policy equally to disabled and non-disabled employees the employer will not avoid the imposition of this duty;
The employer should consider carefully what adjustments could be made to the policy and critically examine whether or not they are reasonable in the circumstances. The factors which are likely to be important in this consideration are the nature of the disability and the extent of the impact this has on the employee's attendance; the likely length of future absences; the effect the absences are having on the business as a whole; whether medical evidence suggests there may be any improvement or deterioration in the employee's condition moving forward. It will almost always be a good idea for the employer to obtain information from an occupational health adviser or from the employee's GP on their medical condition.
While the Court of Appeal's decision in Griffiths may appear to be bad news for employers, it does demonstrate that simply because an employer is under a duty to make reasonable adjustments to an attendance management policy, it does not mean that the adjustments proposed will be reasonable. As such, the decision illustrates that it is not a breach of the Equality Act for employers to manage the attendance of disabled employees and even determine that at some stage, their attendance is such that dismissal is necessary. However, it highlights the need for employers to act with caution and to remember that the Equality Act can require more than simply equality of treatment between disabled and non-disabled employees; it can actually require disabled employees to be treated more favourably to ensure that there is a level playing field between disabled and non-disabled employees.