Disability Discrimination- clarification on the requirement to make reasonable adjustments

The Court of Appeal has recently clarified the correct approach to the law on reasonable adjustments in the case of Griffiths v Secretary of State for Work & Pensions.

Under section 20 of the Equality Act the law requires employers to make reasonable adjustments for disabled employees. In regard to needs to make physical changes to a workplace the duty about reasonable adjustments seems clear. More complicated, and frankly more frequent cases, involve adjustments to work practices and policies to accommodate the needs of disabled employees.

The duty to make reasonable adjustments is also an unusual duty, even in the context of discrimination law. In the main, the laws on discrimination have aimed to ensure that the particular group (be that women, people of different ethnicities or nationalities, or ages, for example) are treated the same or have the same opportunities as people of other backgrounds or other characteristics. The law requiring the employer to make reasonable adjustments requires positive steps or action by an employer, and is a continuing duty. The decision of the House of Lords in the case of Archibald v Fife indicated that the duty to make reasonable adjustments could effectively oblige the employer to make adjustments which in effect provide preferential treatment for the disabled employee, if the treatment in question was a reasonable adjustment. But the concept of treating equally has remained prevalent in the subsequent cases.

A common problem with the interpretation of the duty to make reasonable adjustments, and the concept of equal treatment, has arisen in the way in which employers deal with sickness absence and sickness absence policies. How should an employer deal with two employees that are both sick for a similarly long time, but one has a condition which amounts to a disability, but the other does not? In many cases employers will take a view that if they have treated the disabled employee and the non-disabled employee the same in the way they operated the sickness absence procedures then they have not discriminated against the disabled employee. The case of Royal Bank of Scotland v Ashton (a decision of the Employment Appeals Tribunal (EAT)) has been authority for the argument that if the employer's policy or procedure did not put the disabled employee at disadvantage compared to the non-disabled employee  (because a non-disabled employee absent for a similar length of time would have been subject to the same process) then the duty to make reasonable adjustments does not arise.

The problem with the approach in Royal Bank of Scotland v Ashton is that it effectively got rid of the duty to make reasonable adjustments. That decision indicated that if the correct comparator is a person on whom the same practical effect of a particular "provision, criterion or practice" are the same as they are on a disabled employee, then no duty to make reasonable adjustments will ever arise. An example of how this would work would be with a restaurant which bans dogs from entering the premises. A devoted dog owner is as much disadvantaged by that policy as is a blind customer that has a guide dog. This effectively ignores the actual effect of the disability (blindness in this case) and the fact that because the individual is blind (ie disabled) they rely on the guide dog.

The case of Griffiths v Secretary of State for Work & Pensions concerned an administrative officer who suffered from post-viral fatigue and fibromyalgia. This resulted in the employee taking significant periods of sickness absence. The employee asked her employer to withdraw a warning issued after a 66 day sickness absence, which was largely attributed to her disability, and to modify the procedure in the future so that she could have longer periods of absence than non-disabled employees without further sanctions being imposed. In the Employment Tribunal and the EAT the decisions followed the approach in Ashton, and so dismissed her claim. This was reversed by the decision of the Court of Appeal.

The effect of the decision in the Court of Appeal is that employers need to consider the duty to make reasonable adjustments when considering what (if any) sanction should be imposed on a disabled employee under their sickness absence procedures. The case also confirms that the legal duty to make reasonable adjustments can be to take positive (favourable) steps for the disabled employee, and not simply treat the disabled employee in an equal manner as others.

At Hallett Employment Law Services Ltd we can help you with the proper policies and procedures to implement in dealing with sickness absences, and the approach to take in dealing with any disabled employees.