Following the outcome of this Court of Appeal Case, employers may need to review and update their absence management policies and consider making reasonable adjustments to the same when they might have a disabled employee with high levels of sick leave.
Employers often have policies for absence which trigger disciplinary action and sometimes dismissal for persistent ill health when absence levels rise above a normal acceptable level. Where an employee’s disability leads to absence levels which a non–disabled employee is unlikely to have, the rules of an absence management policy may put the disabled employee at a substantial disadvantage. Where this now occurs, the duty in section 20 of the Equality Act 2010 will be engaged requiring the employer to take reasonable steps to prevent a disabled person being disadvantaged by a rule that applies equally to non disabled person.
Whether it is reasonable for the employer to make reasonable adjustments to their policy will depend on the particular circumstances of the case.
In Griffiths v The Secretary of State for Work and Pensions  EWCA Civ 1265, the Court of Appeal has upheld the EAT's judgment that the employer did not fail to make reasonable adjustments, but overturned its finding that the trigger for disciplinary sanctions under a sickness absence policy was not subject to the duty to make reasonable adjustments.