The Secretary of State had an absence management policy which provided that formal action could be taken against employees where absences reached a specified unsatisfactory level, known as the consideration point.

The policy provided that adjustments could be made to accommodate disabled employees, including ignoring periods of disability-related absences in exceptional circumstances or increasing the consideration point to allow disabled employees more absences before formal action would be taken.

Ms Griffiths was absent from work for 66 days, 62 of which were as a result of an illness arising out of her disability, which was post-viral fatigue and fibromyalgia. On her return to work, she was given a formal written improvement warning.

Ms Griffiths raised a grievance and ultimately brought tribunal proceedings claiming that the Secretary of State had failed to make two reasonable adjustments to the application of the absence policy:

Both an employment tribunal and the Employment Appeal Tribunal (EAT) concluded that the duty to make reasonable adjustments did not arise, following the earlier decision of the EAT in The Royal Bank of Scotland v Ashton (UKEAT/0372/13; UKEAT/0542/09 and 0306/10). As the absence management policy was applied equally to all employees, both the tribunal and the EAT found that it did not put disabled employees at a substantial disadvantage compared with non-disabled employees. A non-disabled employee with the same amount of sickness absence would be treated in the same way as a disabled employee.

The court rejected this, overturning the decision in Ashton. The court identified the provision, criterion or practice (PCP) which had been applied to Ms Griffiths as "a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal".

In deciding whether a disabled employee is put at a substantial disadvantage by this PCP, the correct comparator was not a non-disabled employee who had a similar level of absence but simply a non-disabled employee. Considered in this way, the PCP clearly disadvantages a disabled employee whose disability increases the likelihood of absence from work on the grounds of ill health.

The Secretary of State had also argued that the adjustments to the policy which Ms Griffiths had requested did not fall within the scope of the duty to make reasonable adjustments, because the duty only requires steps that would help to enable disabled employees to return to work or to carry on working. Here, it was argued that the adjustments would, if anything, provide an incentive to have more sick leave. The court rejected this argument, concluding that the duty could extend to taking any steps to remove a disadvantage for a disabled employee.

However, helpfully for employers, the court observed that adjustments that do not help to integrate a disabled employee in the workforce are unlikely to be reasonable adjustments which an employer can be required to take. By way of example, it referred to a previous Court of Appeal decision which held that extending sick pay for a disabled employee was not an adjustment which it would have been reasonable to require the employer to make (O'Hanlon v Commissioners for HM Revenue & Customs [2007] EWCA Civ 283; www.practicallaw.com/8-364-4990).

Although the court found that the duty to make reasonable adjustments was engaged, it held that the tribunal had been entitled to find that the adjustments sought were not steps that the employer could reasonably be expected to take.

Ms Griffiths had argued that her 62-day absence should be disregarded because it was the period when her condition was diagnosed and her treatment plan put in place. However, the tribunal had concluded that the medical condition was not a one-off illness and that further periods of absence could be expected. In these circumstances, the tribunal was entitled to conclude that it was not reasonable to expect the Secretary of State to disregard the extended absence.

In relation to the request to extend the consideration point, there was no obvious period by which the consideration point should be extended. In order to remove the worry and stress caused by the risk of future formal action entirely, all disability-related absences would have to be excluded, but no one was suggesting that this was reasonable. However, if that step is not taken, any lesser adjustment becomes arbitrary. Moreover, where future absences are likely to be long, a small increase would not, in practice, remove the disadvantage suffered by the employee. In these circumstances, the tribunal was entitled to conclude that it was not reasonable to expect the Secretary of State to increase the consideration point. The court observed that the position might be different where an employee is likely to be subject to only limited and occasional absences, in which case, it would be possible to extend the consideration point in a principled and rational way.

Employers dealing with disabled employees whose disability is likely to cause additional sickness absence will need to consider whether to make any adjustments to their absence management policy to take account of disability-related absences. In deciding whether to do so, employers would be well advised to rely on advice from occupational health as to the likely impact of an employee's disability.

Employers should also remember that the duty to make reasonable adjustments is not the only consideration. In particular, as the court pointed out, where an employer imposes a formal sanction or dismisses someone for a disability-related absence, this will amount to discrimination arising from disability, unless the sanction is objectively justified as a proportionate means of achieving a legitimate aim.