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The Court of Appeal in Griffiths: Malcolm comparison 'inapt' for reasonable adjustment cases
In the disability discrimination decision of Griffiths v Secretary of State for Work and Pensions, the Court of Appeal provides helpful guidance on the proper comparator in reasonable adjustments cases. Rachel Crasnow QC and Sarah Fraser Butlin suggest that the Court’s conclusion – that the comparator is not akin to that in Malcolm – must be correct. They also address two subsidiary matters raised by the Court of Appeal that provide helpful guidance to practitioners – the interplay of s.20 Equality Act 2010 (reasonable adjustments) with s.15 Equality Act 2010 (a disability related claim), and the breadth of what is a reasonable step.
Ms Griffiths was an administrative officer who had long periods of sickness absence from work because of her post-viral fatigue syndrome and fibromyalgia. It was common ground that she was a disabled person. Under the respondent’s attendance policy her absence had triggered a “written improvement warning”. She took out a grievance seeking that the warning be withdrawn and that in the future the number of days of absence that would activate the usual attendance policy provisions should be increased.
The grievance was rejected and she brought a reasonable adjustments claim. Her claim was dismissed by the employment tribunal as was her appeal before the EAT (see EOR 249).
The EAT decision (Judge Mr Recorder Luba QC) followed the approach in Royal Bank of Scotland v Ashton  ICR 632 and Newcastle upon Tyne Hospitals NHS Foundation Trust v Bagley  EqLR 634. Importantly, when considering the question of comparison, the EAT stated (at para. 33) that: “The proper comparator in Ms Griffiths’ case is a non-disabled person absent for sickness reasons for the same amount of time but not for disability‑related sickness. If a claimant is treated at least as well as such comparators s/he cannot be at a disadvantage let alone a ‘substantial’ disadvantage.”
This was the crux of the appeal before the Court of Appeal (see EOR 265): who is the proper comparator in reasonable adjustments cases under s.20 Equality Act 2010? The CA overturned the EAT and with it the line of authority established in Ashton, including the EAT cases of Bagley, Rider v Leeds City Council  EqLR 98 and Bailey v Hillingdon London Borough Council  EqLR 729.
Comparators and s.20: not a question of treating all alike
Before one can consider who the proper comparator is, the applicable provision, criterion or practice (PCP) must be framed properly. The CA held that the EAT had got the PCP wrong, and the employment tribunal had got it right. The correct PCP was that the employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions.
Who then is the comparator? Is it, as in Ashton, “...bearing in mind that any comparison here should be a comparison of those who but for the disability are in like circumstances (see Malcolm v Lewisham LBC  1 AC 1399)”? In Griffiths, the CA held that Ashton was wrong. There was no reason to assume that the House of Lords’ decision in Malcolm applied to the duty to make reasonable adjustments.
Elias LJ returned to the analysis in Archibald v Fife Council  UKHL 32 and emphasised the focus on the proper comparator being determined by the disadvantage caused by the PCP (at para. 21). Thus the PCP is critical. Where the PCP in this case was the general policy itself, it was inevitable that there could be no disadvantage to disabled people because there was discretion for special allowances to be made. The “mere existence of a discretion” shut the door to a claim of discrimination even if that discretion was not in fact exercised. However, here the complaint was in fact that the policy had not been so applied in the claimant’s case. Thus the PCP was the requirement to maintain a certain level of attendance. In this case, it was clear that a “disabled employee whose disability increases the likelihood of absence from work on ill-health grounds is disadvantaged” (at para. 47). In other words, the PCP “bites harder” on the disabled person than the able-bodied (at para. 58). The CA relied on the CJEU case of HK Danmark (acting on behalf of Ring) v Dansk almennyttigt Boligselskab C-355/11  ICR 851 (see EOR 236) when considering what the disadvantage was: “In Ring, a common rule relating to sickness absence was held to disadvantage disabled workers who suffered from disability-related sickness absences. In my judgment, it is clear that the common rule applied in this case equally disadvantages disabled workers whose absence is disability-related.”
The “bold” submissions that Malcolm still applied to reasonable adjustments claims and that Archibald was implicitly overruled by Malcolm were rejected.
Importantly, Elias LJ emphasised that the “whole purpose ... is to require the employer to take such steps as may be reasonable, treating the disabled differently than the non-disabled would be treated, in order to remove that disadvantage” (at para. 58). Thus, the s.20 duty is not satisfied by treating all alike.
This decision will be a blow to employers who have sought to limit the scope of their duty to make reasonable adjustments by relying on comparators who are in the same circumstances as the disabled person, adding characteristics to the comparison that means that there was no disadvantage. However, this approach was never going to be long-lasting, not least because of s.23 Equality Act, which states that there “must be no material difference between the circumstances” as between comparators for the purposes only of s.13 (direct discrimination), s.14 (dual discrimination) and s.19 (indirect discrimination) claims. It never applied to s.20 claims; thus, although the point does not appear to have been taken in Griffiths, it was inevitable that the EAT’s approach to the comparative exercise would ultimately be held to be erroneous. Importing a Malcolm-type comparator was never appropriate where it was not required by s.23.
Furthermore, it fundamentally missed the point of s.20. This is the final point about understanding Griffiths: that the s.20 duty is not satisfied by treating all alike. Section 20 requires positive steps to be taken to remove disadvantage. The scope of those positive steps is where real argument is likely in the future, particularly in relation to the likelihood that a step will mitigate the disadvantage and arguments around the economic impact of steps.
The breadth of a reasonable step
Does a step sought by a disabled employee need to be focused on work? Or can it be broader in scope? The CA considered whether steps which were not aimed at reintegration to employment could even in principle be capable of amounting to a relevant step under s.20(3). A step was not to be artificially narrowed (at para. 65). The question to ask is: would the step remove the substantial disadvantage caused by the PCP? However, even if in principle steps such as continuing sick pay might remove the disadvantage of being on long-term sick leave, the further the purpose of the step is from returning a claimant to the world of work, the less likely that step is to be a reasonable one for the employer to have to take. The reason for this, as the EAT said in O’Hanlon v Commissioners for HM Revenue & Customs  IRLR 840 (see EOR 157), is that the important and laudable aims of the disability discrimination legislation were “to recognise the dignity of the disabled and to require modifications which enable them to play a full part of in the world of work ... It is not to treat them as objects of charity...”
This twin emphasis on dignity and “the world of work” is reflective of both the EU position and that of the UN Convention on the Rights of People with Disabilities. Cases under the European Framework Directive (2000/78/EC) provide protection for those who have a “limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life” and this focus on professional life has been emphasised in recent cases dealing with this definition of disability: see Ring and, similarly, Z v A Department C-363/12  IRLR 563 concerning the inability to conceive naturally. Dignity and personhood are at the core of the UN Convention with its social, rather than medical, model of disability, focusing on the barriers to participation in society rather than the medical impairments of the person with disabilities. The emphasis is not on charity, but rather the “full and effective participation in society on an equal basis with others” of those with disabilities (Recital (e) and see similarly Recital (a)). However, this breadth of approach still requires a focus upon working life.
Use of the “robust” section 15
Under the Ashton line of cases, the view had been taken that the way round this comparator conundrum was to use the disability-related claim under s.15 instead; as explained in General Dynamics Information Technology Ltd v Carranza  ICR 169 (at para. 34) (see EOR 252). It might be thought that the reversal of the finding on s.20 comparators made this tactic redundant. But Elias LJ decided it could be artificial to fit reasonable adjustments claims around treatment that had already taken place – such as in an attempt to invalidate a written warning. Instead, it might be that treatment like disciplinary sanctions could be better analysed under s.15. By comparison, attempts to limit the risk of future sanctions arising from absences from work can, the Court of Appeal found, be more naturally dealt with using the s.20 duty, although even here disability-related claims are not irrelevant.
From a practitioner’s perspective, paragraphs 22 to 27 of the CA judgment provide a helpful summary of the interplay between the various types of discrimination claim. Elias LJ reminds us that “it is perfectly possible for a single act of the employer, not amounting to direct discrimination, to constitute a breach of each of the other three forms” (at para 26).
In conclusion, it can be seen that the CA judgment restores the proper approach to reasonable adjustments claims and broadly “fits” with the international landscape. Regardless of the CA’s comments on artificiality and whether to use s.20 or s.15, reasonable adjustments claims will be far less likely to be defeated at the comparator threshold stage.
This article was first published on the Equal Opportunities Review blog 27 February.