Substantial Disadvantage in an Ill Health Context

Rosa Dickinson
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Life has just got a lot easier for Claimants complaining of a failure to make reasonable adjustments in respect of ill health absences following the Court of Appeal’s decision in Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265 as to the appropriate comparator for the purposes of establishing substantial disadvantage.

The Claimant had a number of disability related absences which resulted in her receiving a written improvement warning under the Respondent’s Absence Management Procedure. She raised a grievance seeking (a) that the warning be revoked, and (b) a modification to the policy such that she was allowed a greater number of absences before she faced sanctions than was the case for non-disabled employees. The grievance was unsuccessful, and the Claimant brought proceedings alleging a failure to make reasonable adjustments.

The Claimant was unsuccessful both at first instance and in the EAT. Both tribunals found not only that the proposed adjustments were not reasonable, but further that the duty did not even arise. Under section 20(3) Equality Act 2010, for the duty to arise the employer must apply a provision, criterion or practice which places the employee at a substantial disadvantage as compared with non-disabled people. The Claimant was unable to show substantial disadvantage because, as Recorder Luba QC put it in the EAT: “the cases show 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”. This followed the decision in Royal Bank of Scotland v Ashton [2011] ICR 632 which seemingly imported the Malcolm comparator into reasonable adjustments cases. The net effect was that Claimants faced a formidable task to show they had suffered a disadvantage compared with a Malcolm-style comparator; the disadvantage of being more likely to have sickness absence than a non-disabled employee was obliterated by the use of such a comparator.

On appeal by the Claimant to the Court of Appeal, Elias LJ upheld the Claimant’s appeal on the substantial disadvantage point. He commented that the reasoning of Langstaff P in Ashton, relied on heavily by the EAT, was incorrect because it was based on two assumptions:

a) That the appropriate PCP was the policy itself. Elias LJ stated that “formulating the PCP in that way fails to encapsulate why a sickness absence policy may in certain circumstances adversely affect disabled workers” and that the appropriate PCP to use is “the employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions”. Going forward, those representing Claimants in such cases should ensure the Tribunal formulates the PCP in accordance with this suggestion.

b) That the Malcolm comparator applies to a claim for failure to make reasonable adjustments. This was held to be incorrect both because it would be inconsistent with the purpose of the duty to make reasonable adjustments, and because it would be inconsistent with the approach in Archibald v Fife Borough Council [2004] IRLR 651, which makes plain that the duty is not satisfied by treating disabled and non-disabled equally; rather it involves an element of more favorable treatment. As Baroness Hale put it, the statute “does not regard the differences between disabled people and others as irrelevant. It does not expect each to be treated in the same way…It necessarily entails an element of more favourable treatment.” Accordingly, the non-disabled comparator for the purposes of substantial disadvantage should not have an equivalent level of sickness absence.

The Claimant therefore succeeded in establishing substantial disadvantage on appeal. In the event, it did not get her very far because the Court of Appeal dismissed her appeal on the basis that the Employment Tribunal had been entitled to find that the proposed adjustments were not reasonable. Nonetheless Elias LJ’s comments on substantial disadvantage have made the test for satisfying section 20(3) of the Equality Act in an ill health absence context significantly more Claimant friendly.

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