In the earlier case of Royal Bank of Scotland v Ashton, the EAT had held that a provision, criterion or practice that required a certain level of attendance at work to avoid receiving warnings or being dismissed did not put disabled employees at a disadvantage compared to non-disabled employees because a non-disabled employee absent for a similar period would be subject to the same procedure. In the context of a claim for failure to make reasonable adjustments, if there is no disadvantage when compared to a non disabled employee then the duty to make adjustments does not arise.
Ms Griffiths had asked for her employer to ignore 62 days of absence which was related to her disability, and to delay the trigger point of warnings in future by 12 days. Her employer declined to do either. She took a claim of failure to make reasonable adjustments to the Tribunal. However, both the Employment Tribunal and the EAT dismissed her claim, feeling bound by the Ashton case. The Employment Tribunal had in any event found that the adjustments requested were not reasonable in the circumstances and the EAT agreed.
The Court of Appeal though found that a disabled employee who suffers from a disability that increases the likelihood of absence through ill health is disadvantaged by an absence management policy compared to a non-disabled person. The duty to make reasonable adjustments does therefore apply.
However, it is worth noting that the Court of Appeal also accepted the Tribunal's decision that in this case the adjustments requested were not reasonable. This was in part because further lengthy absences were anticipated, and ignoring the initial absence and extending the trigger point in future, would be of limited effect. So while it is now clear that employers need to consider adjustment of these policies, if the proposed adjustments will not effectively address the disadvantage then employers will not be required to make them.