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Long-awaited clear reasoning on comparators

Long-awaited clear reasoning on comparators

Rachel Crasnow QC and Tamar Burton consider the Court of Appeal’s judgment in Griffiths v Secretary of State for Work and Pensions.

The judgment of Elias LJ handed down on 10 December 2015 has confirmed that the duty to make reasonable adjustments may well be engaged in the application of attendance management policies to disabled employees.

The Facts

The Appellant had been employed since 1976 and in October 2009 she began to experience symptoms which were later diagnosed as post-viral fatigue and fibromyalgia. The question of disability was conceded by the Respondent.

She received a written improvement warning under the Respondent’s Attendance Management Policy (“the Policy”) following a 66-day absence; 62 of these days were the result of an illness arising out of her disability.

She brought a claim for the failure to make reasonable adjustments contrary to s. 20 EqA. She argued that the 62-day absence should have been treated as an exceptional absence and disregarded for the purposes of the Policy and that her written warning should be revoked.

She relied on a PCP of the requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal. She contended the substantial disadvantage was the “worry and stress and the threat of losing her job.” She was not complaining about the terms of the policy itself, which allowed for adjustments where appropriate, she was complaining about the application of the Policy to her particular circumstances.

The majority of the Employment Tribunal rejected her claim holding that there was no duty under s.20 EqA on the basis that the Policy applied to all employees whether disabled on not. In doing so it relied heavily on the EAT’s decision in RBS v Ashton [2011] ICR 632 for the proposition that a policy applicable equally to all would not engage the duty to make reasonable adjustments. It made a secondary finding that the adjustments claimed in any event were not reasonable.

The EAT rejected the Appellant’s appeal, agreeing with the majority of the Employment Tribunal and relying on RBS v Ashton [2011] ICR 632, holding that no duty to make reasonable adjustments had arisen. It further accepted the Respondent’s submission that the adjustments proposed by the Appellant were not “steps” within the meaning of s. 20(3) EqA as they would not allow her to carry out her duties and might simply facilitate her absence from work.

Following the judgment of the EAT, many practitioners and commentators expressed concern that the approach of the EAT required disabled employees to make a like-for-like comparison with non-disabled employees. The Respondent relied expressly on the approach of the House of Lords in Malcolm v Lewisham LBC [2008] 1 AC 1399 in its argument that there was no substantial disadvantage for the Appellant in the application for the policy.

The Court of Appeal’s Judgment

Elias LJ had “no hesitation” in rejecting the Respondent’s submission that the approach taken by the House of Lords in Malcolm v Lewisham LBC [2008] 1 AC 1399 must be applied to a claim under s. 20 EqA. The appropriate approach to the comparative exercise under s. 20 EqA is to ask the question: whether the provision, criterion or practice (PCP) puts the disabled person at a substantial disadvantage in comparison with a non-disabled person.

The fact that the disabled and non-disabled employee are treated equally and may both be subject to the same disadvantage when absent for the same period of time does not eliminate the disadvantage “if the PCP bites harder on the disabled … than it does on the able bodied.”

He rejected the reasoning underpinning RBS v Ashton [2011] ICR 632, which can no longer be viewed as good law. Both the Employment Tribunal and EAT had erred in finding that s. 20 EqA was not engaged. The Appellant was substantially disadvantaged by the application of the PCP because she was more likely to be absent owing to her disability.

The Court of Appeal also rejected the Respondent’s contention that “steps” within the meaning of s. 20 EqA are confined to measures that will enable disabled employees to return to work or carry on working. This would be artificially to narrow the requirements of s. 20(3) EqA. Elias LJ expressed the view that any modification or qualification to a PCP that would or might remove a substantial disadvantage to a disabled person is in principle capable of amounting to a relevant step. The only question is whether it is reasonable for that step to be taken.

Despite these findings the Court of Appeal, determining the appeal against the Appellant, held that the Employment Tribunal was entitled to find that the adjustments the Appellant had proposed were unreasonable.

However, Elias LJ emphasised that the fact that an employer may be under no duty to make positive adjustments to an attendance management policy does not mean that he will be entitled to dismiss the employee. The provisions of s. 15 EqA require an employer not to treat an employee unfavourably because of something arising from disability and this duty also requires an employer to make allowances for a disabled employee. If the employee is dismissed, the question will still arise as to whether dismissal is a proportionate response to the employee’s pattern of absences in all the circumstances, including the important fact that the absences may be wholly or partly disability-related.

Comment

This Court of Appeal judgment has been long awaited. The previous trend of EAT judgments had rendered reasonable adjustments claims effectively useless in the attendance management context. The view of the Employment Tribunal that “The [attendance] policy applies to all. All face the same consequences if the absence level triggers a response under the policy…. The policy did not put the Claimant at a substantial disadvantage compared to a non-disabled person so far as sanctions were concerned” appeared to misunderstand the nature of the comparative exercise. Practitioners will welcome the common sense approach of the Court of Appeal where it states:

Whilst it is no doubt true that both disabled and able bodied alike will, to a greater or lesser extent, suffer stress and anxiety if they are ill in circumstances which may lead to disciplinary sanctions, the risk of this occurring is obviously greater for that group of disabled workers whose disability results in more frequent, and perhaps longer, absences. They will find it more difficult to comply with the requirement relating to absenteeism and therefore will be disadvantaged by it.”

The Court of Appeal was bolstered in its view by CJEU case law: see Ring [2013] ICR 851. Thus litigants who had been advised to bring claims under s. 15 EqA and not bother with s. 20 EqA claims in such situations (see General Dynamics Information Technology Ltd v Carranza [2015] ICR 169), can now use the full breadth of the EqA as the legislators intended.

Secondly the Court of Appeal has put an end to the narrow approach to steps which employers are required to take should the s. 20 EqA duty bite.

In addition to its clear exposition on the appropriate approach to s. 20 EqA claims, the judgment also provides helpful guidance on the similar requirements of s. 15 and s. 19 EqA claims where ”both forms of discrimination are likely to stand or fall together”.

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