There was some confusion a few years ago about whether absence management policies containing specific sickness absence triggers potentially put employees with disabilities at a disadvantage. The Court of Appeal found that they did in Griffiths v Secretary of State for Work and Pensions, meaning that the duty to make reasonable adjustments applies. Northumberland Tyne & Wear NHS Foundation Trust v Ward is a case in which the employer's failure to adjust its absence trigger point – despite having done so previously – breached the duty.
Ms Ward suffered from ME/chronic fatigue syndrome. It was common ground that she was disabled under the Equality Act and that her disability meant that she would have a higher than average sickness absence rate. Initially the employer applied an extended sickness absence trigger to her. Over a four year period her absences were within those extended limits. However, at that point the extended trigger was withdrawn, and the usual trigger point applied. This was apparently in reliance on the EAT decision in Griffiths, before the Court of Appeal clarified the position.
Although adjustments were made to Ms Ward's working hours and she was allowed to work flexibly, her absences exceeded the usual trigger points and she was eventually dismissed. She claimed, amongst other things, that the failure to continue to apply the extended trigger to her was a failure to make a reasonable adjustment and the tribunal agreed. The employer appealed to the EAT.
The EAT confirmed the employment tribunal's decision. Applying the usual sickness absence triggers to the employee put her at a disadvantage. She had argued throughout her case that an extended trigger would prevent that disadvantage, as it had done previously. An adjustment made at a particular point in time will not necessarily continue to be reasonable, but the EAT would expect an employer to be able to demonstrate some change in circumstance to show that this is the case. There was no such evidence here. Although there might be more than one adjustment that could be made to reduce disadvantage to an employee, an employer cannot simply point to other adjustments that have been made and argue that it has done enough if there are more effective adjustments that could have been made. The tribunal's finding that the other adjustments did not have the effect of reducing the disadvantage but that an extended trigger point would have done was one that it was entitled to reach
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