Griffiths v Secretary of State for Work & Pensions

The Claimant in this case was an administrative officer who suffered from post-viral fatigue and fibromyalgia. She was absent from work for 66 days, most of which was attributable to her disability. The Respondent issued the Claimant with a warning and the Claimant requested that it was removed. The Claimant also requested modification of the absence policy so that she could have longer periods of absence without sanction in relation to non-disabled colleagues. The Respondent refused to permit any change to their absence policy.

The Claimant complained of a failure to make reasonable adjustments required under the Equality Act. The provision, criterion or practice (“PCP”) relied on was “a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal.” The Employment Tribunal and Employment Appeal Tribunal felt bound by the perplexing case of Royal Bank of Scotland v Ashton and held that the PCP did not put the Claimant at a disadvantage compared with those who were not disabled, because a non-disabled employee absent for a similar period would have been dealt with in the same way and therefore no duty to make reasonable adjustments arose.

In Practice

"This decision, although on the face of it a strange one, is further support to the principle that disabled workers should not be put on a better standing than their non-disabled colleagues," clarifies Employment Associate Paul Burton. It is in line with previous case law that confirms, for example, that disabled workers should not be treated more favourable in terms of pay when off sick as a result of their disability. The test is that they are not treated less favourably. Where this case is interesting is that it extends the principle to the duty to make reasonable adjustments.

Our Employment Team, based in Christchurch, also cover Bournemouth, Poole and the New Forest. For a free initial chat, please call 01202 499255 and Paul or a member of the team will be happy to discuss any questions that you may have.